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2023
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[2023] ZAFSHC 471
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Standard Bank of South Africa Limited v Maree and Another (3372/2023) [2023] ZAFSHC 471 (7 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3372/2023
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Applicant
and
DEON
CORNELIUS MAREE
1
st
Respondent
JOHANNA
GERTRUIDA
MAREE
2
nd
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
19 OCTOBER 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
07 DECEMBER 2023
[1]
This is the extended return day of a
rule nisi
granted against
the respondents on 30 June 2023 on an urgent and
ex parte
basis. It appears that the matter was postponed on 10 August 2023 to
24 August 2023 without the
rule nisi
having been expressly
extended to that date, but on 24 August 2023 Opperman, J made the
following order: “This
rule nisi
dated 30 June 2023 is
extended to 19 October 2023 and the application is postponed to the
opposed roll of 19 October 2023 to be
argued.”
[2]
It was submitted in this court
that the
rule nisi
had lapsed during the period 10 August 2023
to 24 August 2023 by operation of the law. This submission, however,
cannot be upheld
because even should it be regarded as correct, then
certainly the
rule nisi
became revived again by the order made
by Opperman, J. This court is therefore called upon to decide whether
the
rule nisi
dated 30 June 2023 must be confirmed or not.
[3]
In terms of the
rule nisi,
notarial bonds of the respondents
were perfected in favour of the applicant, and the applicant and its
duly appointed agent were
granted access to certain properties of the
respondents to monitor the harvesting and sale of maize crops. The
applicant was also
authorized to keep in its possession such movable
property and effects, as referred to, as a pledge and as such
security for all
amounts due by the respondents pending the
finalization of any application or action to be instituted by the
applicant against
the respondents, or such other legal steps to be
instituted by it against them.
[4]
The respondents were further prohibited and interdicted, pending and
during the harvest
of the 1
st
Respondent’s maize
crop, from alienating or in any manner encumbering any portion of the
crop without the applicant’s
prior written consent and/or
supervision. They were also interdicted from interfering with the
applicant’s or its duly appointed
agent’s access to the
properties or from preventing them to enter the properties for the
purposes of monitoring or harvesting
the crop. All the orders
contained in the
rule nisi
were ordered to serve as an interim
order with immediate effect pending the finalization of an action,
application or other legal
steps to be instituted by the applicant
for the payment of all amounts due by the respondents to the
applicant within 30 days after
finalization of this application.
[5]
The confirmation of the
rule nisi
became vigorously opposed by
the respondents on a number of grounds. The respondents even filed a
rejoinder affidavit in the end,
without seeking the consent of the
court by way of a substantive application, to rebut some of the
allegations made by the applicant
in its replying affidavit. The
court was merely requested during the hearing of the application to
allow the rejoinder affidavit,
to which step the applicant expressed
its objection.
[6]
In the rejoinder affidavit, the respondents mention that they seek it
to be allowed
so that they can respond to additional matter raised in
the replying affidavit by the applicant. One of the additional
matters
the respondents refer to, is a settlement agreement that was
signed on the 17
th
July 2023 at Harrismith, and the 3
rd
August 2023 at Durban. The parties to this settlement agreement were
the applicant, on the one hand, and the two respondents, the
trustees
of the D. C. Maree Trust and Goldensands 31 Trading CC on the other
hand.
[7]
Significantly, in clause 4 of the settlement agreement, the last
mentioned parties
acknowledged that they were in default in relation
to the agreements pertaining to a large number of accounts held with
the applicant,
and they further acknowledged that they were lawfully
and jointly and severally indebted to and in favour of the applicant
as principal
debtor and sureties/guarantors in the amounts and
interest thereon as stipulated in the settlement agreement. In clause
5.1 the
parties undertook to settle the full outstanding balances
within 4 months. In clause 5.2.2 thereof it is recorded that “the
parties consent thereto that the
Rule Nisi
dated 30 June 2023
under case number 3372/2023 can be confirmed on 3 August 2023”.
[8]
In clause 8 of the agreement the
following appears: “The 1
st
to 3
rd
Trustees and the Company confirm that they are fully aware of the
facts of the Application under case number 3372/2023 as well
as the
debt due and payable and hereby together with the Respondents agree
and consent that the Applicant/Bank may proceed to make
this
settlement agreement an order of court.”
[9]
In their answering affidavit,
the two respondents contested the validity of the settlement
agreement on the basis that they have entered into the agreement
under duress and that they were forced to sign it. The applicant
thereupon dealt with the circumstances under which the settlement
agreement was entered into, to show that there was no duress
of
force. Amongst others, it is to these allegations or circumstances
that the respondents want to respond in their rejoinder affidavit.
[10]
It speaks for itself that this settlement agreement could have a
direct bearing on the question
whether the
rule nisi
should be
confirmed or not. In order to have the dispute regarding the
agreement properly ventilated, I have decided to allow the
rejoinder
application to that end. Its contents will therefore be considered
together with what is set out in the answering and
replying
affidavits, as far as the agreement is concerned.
[11]
In their answering affidavit, the respondents say that the interim
order was used to force settlement
agreements on them, which
agreements were intended to circumvent due process, take away the
court’s judicial oversight and
take away their rights to a fair
process. They were told to sign the settlement agreements or cease
trading, and they were consequently
forced to sign, they say. They
further allege that, after service of the
rule nisi
, they were
told that they could not deliver any crops or farm until and unless
they signed settlement agreements, which basically
gave the bank the
authority to sell their properties without judicial oversight. They
were therefore forced to choose between the
lesser of two evils,
namely to halt farming, or to sign agreements irrespective of the
content and consequences thereof in order
to keep the bank satisfied.
They further said that they were in the process of issuing a summons
in order to have the agreements
set aside.
[12]
The respondents also say that there were ulterior
motives to bringing the application on an
ex parte
basis,
which included using the settlement agreements as a means of
circumventing due process because due process would have afforded
them a proper opportunity to consult and answer to the allegations
against them. They allege that the applicant has several surety
bonds
registered against their immovable property, and “they
intentionally left out such material allegations in order to
mislead
the court and abuse the
ex parte
process. They now want to
disclose such security, after having forced us into an agreement, to
circumvent due process.” Elsewhere
the respondents say they
were forced to sign settlement agreements in order for the maize to
be delivered.
[13]
In its replying affidavit the applicant denies that the respondents
were forced to sign a settlement
agreement and that they most
certainly did not sign it under duress. The applicant points out that
after the perfection order was
obtained, the respondents through
their attorney, mr. Van Wyk of Cloete and Neveling Attorneys,
Harrismith, contacted the applicant’s
attorney to arrange for
an urgent meeting between the applicant and the respondents to
discuss the outstanding indebtedness of
the respondents, the
perfection of the notarial bonds, and the way forward. The proposed
meeting took place on 5 July 2023 at the
offices at Cloete and
Neveling Attorneys in Harrismith. The meeting was attended by the
respondents and their attorney, mr. Van
Wyk, officials of the bank
and the bank’s attorney.
[14]
According to the applicant, various discussions took place at the
meeting, after which the respondents
told the bank officials that
they were going to take a short break in order to consider what
proposals should be forwarded to the
bank. On 11 July 2023 messrs.
Cloete and Neveling furnished the respondents’ proposals to the
applicant’s attorney,
which proposals were contained in a
letter annexed to the affidavit. In terms thereof, it was proposed
that the respondents be
granted the opportunity to market and sell
their property within a period of four months after the respondents
delivered the maize
harvested in order to settle the outstanding debt
due. The proposals included an indication by the respondents that
they were going
to stop farming.
[15]
These proposals were accepted by the applicant and the settlement
agreement was then drafted
by the applicant’s attorney and
forwarded to the respondents’ attorney in Harrismith for
signature. It was then duly
signed in Harrismith by the respondents,
and some days later by the applicant in Durban. The applicant says in
its replying affidavit
that the first and second respondents’
allegation that the settlement agreement was signed under duress, is
simply untrue
and constitutes a
mala fide
attempt to avoid the
consequences of the settlement agreement, which was validly entered
into. The respondents were at all times
represented by an attorney
who would certainly not have allowed them to sign a settlement
agreement under duress, it says.
[16]
Lastly, the applicant informs in its affidavit
that it is no longer moving for an order that the settlement
agreement be made an order of court. This is so, because the
respondents are attempting to create a dispute of fact regarding the
validity of the settlement agreement. However, an application or
action to have the agreement be made an order of court will be
instituted should it become necessary to do so, the applicant says.
[17]
In their rejoinder affidavit, the respondents contend that the
applicant has abandoned the relief
pertaining to the alleged
settlement agreement, while it still felt the need to address certain
issues pertaining thereto. The
merits have therefore become
irrelevant for purposes of the
ex parte
application. The
merits of the claim in terms of the settlement agreement will be
dealt with in the action to follow, they say.
[18]
Lastly, the respondents submit that the settlement agreement has
substantial and material deviations
from what was discussed, and it
was concluded under suppressive circumstances. Additionally, the
applicant and its attorney attempted
to circumvent the National
Credit Act and other enforcement procedures with the settlement
agreement, which would have been contrary
to public policy and an
agreement to circumvent acts, rules and regulations. They say that
for this reason, the applicant has abandoned
the settlement
agreement.
[19]
Now it is patently clear on the papers before me that the proposals
which eventually culminated
in the settlement agreement, came from
the respondents themselves and their attorney at the time. Those
proposals were accepted
by the applicant, and it thereafter drafted
the document for signature by all the parties. The parties signed the
agreement, and
there is no evidence before the court that the
respondents signed the agreement with the proverbial barrel against
the head. If
there was such evidence, it would have been surprising,
to say the least, in view of the fact that the agreement consisted of
terms
initially proposed by the respondents themselves.
[20]
Having regard to these circumstances, I find that
there is no merit in the contentions of the respondents
that the
settlement agreement was designed by the applicant and its attorney
only to circumvent due process, judicial oversight
and the acts,
rules and regulations applicable in litigation of the kind.
[21]
Nor can I find on the papers before me that the applicant has
abandoned the settlement agreement.
What it did abandon, for the time
being, was its intention to have the agreement made an order of
court. The applicant explained
that it did so because it was of the
view that the respondents were attempting to create a dispute of fact
regarding the validity
of the settlement agreement. The applicant,
however, will take further steps to have the settlement agreement
made an order of
court, should the need for such steps arise, the
applicant said.
[22]
Furthermore, where a person seeks to set aside a contract, or resist
the enforcement of a contract
on the ground of duress, the following
elements need to be established: The fear must be a reasonable one,
it must be caused by
the threat of some considerable evil to the
person concerned or his family, it must be a threat of an imminent or
inevitable evil,
the threat or intimidation must be unlawful or
contra
bonos mores
,
and the moral pressure used must have caused damage.
[1]
None of these elements were alleged by the respondents in the present
matter.
[23]
It follows that the respondents have entered into a valid settlement
agreement with the applicant,
and that they are bound by the terms
thereof, irrespective of whether the agreement was made an order of
court, or not.
[24]
Clause 5.2.2 of the settlement agreement provides
that the parties consent thereto that the
rule nisi
dated 30
June 2023 under case number 3372/2023 can be confirmed on 3 August
2023. The date of 3 August 2023 is of no significance,
since it was
the return date of the
rule nisi
at the time of the signing of
the settlement agreement. That return date has been extended to the
present date of the hearing.
[25]
I therefore make the following order:
1.
The
rule nisi
dated 30 June 2023 is confirmed with costs, to
be paid by the first and second respondents on the scale as between
attorney and
client, such costs to include the costs of two counsel.
_______________
P.
J. LOUBSER, J
For
the applicant: Adv. P Zietsman SC, with him Adv. J Els
Instructed
by: Phatshoane Henney Attorneys
Bloemfontein
For
the first respondent: Adv. Noens M. A. Muller
Instructed
by: Arnoud van den Bout Inc, Pretoria
C/o
Blignaut Attorneys Inc. Bloemfontein
[1]
See Arend and Another v
Astra
Furnishers
(Pty)
Ltd
1974 (1) SA 298
(C) at 306,
Paragon
Business Forms (Pty) Ltd v Du Preez
1994 (1) SA 434
(SE) at 439, and
Savvides v Savvides 1
986 (2) SA 325
(T) at 329.