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[2022] ZAFSHC 112
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Jonker and Others v The Land and Agricultural Development Bank of South Africa (2683/2020; 2685/2020; 2686/2020) [2022] ZAFSHC 112 (9 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2683/2020
Case
No: 2685/2020
Case
No: 2686/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
LOUIS
JONKER
1
st
Applicant
JOHANNA
JACOBA JONKER
2
nd
Applicant
LOUIS
JONKER N.O.
3
rd
Applicant
JOHANNA
JACOBA JONKER N.O.
4
th
Applicant
ANETTE
LIEBENBERG
N.O.
5
th
Applicant
and
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA
Respondent
IN
RE:
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH
AFRICA
Plaintiff
and
JOHANNA
JACOBA JONKER N.O.
Defendant
IN
RE
:
THE
LAND AND AGRICULTURAL DEVELOPMENT BANK
OF
SOUTH
AFRICA
Plaintiff
and
LOUIS
JONKER
Defendant
JUDGMENT
BY:
C REINDERS, ADJP
HEARD
ON:
17 FEBRUARY 2022
DELIVERED
ON:
9 MAY 2022
[1]
The first applicant Mr Louis Jonker conducted a farming and pesticide
business through
the entity known as Jonker Produkte CC (in
liquidation) (“Jonker Produkte”). The second applicant
Mrs Johanna Jacoba
Jonker is married out of community of property to
Mr Jonker. The couple are also joined to the application as the third
and fourth
applicants in their capacities as trustees of the Louis
Jonker Familie Trust (“the trust”).
[2]
In support of the relief sought, the applicants in their founding
affidavits aver
that three identical deeds of suretyship exist in
respect of Jonker Produkte’s indebtedness to the bank. It is
further averred
that the causa in the three combined summonses relate
to the same facts pertaining to the afore mentioned indebtedness of
Jonker
Produkte.
[3]
The bank instituted three separate actions:
3.1
In case no 2683/2020 the bank has instituted action against
first
applicant for payment in the amount of R 13 480 486.33 and R 4 708
710.41 based on a deed of suretyship signed on 24 April
2014.
According to the plea first applicant admits having signed the
suretyship in favour of the entity Unigro. First applicant
pleads
that the suretyship did not authorise or entitle Unigro either
expressly or otherwise to debit amounts from other accounts
that the
principle debtor held at Unigro against the 2019 summer credit
agreement account.
3.2
In case 2685/2020 the action is instituted against the second
applicant claiming payment in similar amounts as in respect of the
first applicant. The second applicant admits having signed the
suretyship and contend the same defences as that of the first
applicant.
3.3
In case no 2686/2020 the bank instituted an action against
the first
and second applicant in their representative capacities (third and
fourth applicants herein) in respect of suretyships
signed in respect
of the trust. It needs mention that the aforementioned trust
according to the summons has a third trustee, Mrs
Liebenberg. The
bank likewise (amongst others) claims payments of the amounts
referred to in par [3.1] above. However, in respect
of the trust the
trustees admit having signed the suretyships on 24 April 2014 but,
amongst others, deny that the purported suretyship
is valid and
enforceable as the three defendants neither resolved to bind the
trust as surety, nor acted jointly when the purported
suretyships
were signed.
[4]
In the notice of motion consolidation of the three actions is sought
and in first
applicant’s founding affidavit it is averred that
the relief sought against all the applicants are based on identical
deeds
of surety in respect of Jonker Produkte.
In
its opposing affidavit the bank concedes that the validity and
enforceability of the agreements of suretyship are the first hurdle
that will have to be satisfied.
[5]
It is trite that a consolidation of actions in terms of Rule 11 of
the Uniform Rules
will in general be ordered to avoid a multiplicity
of actions and costs and that the paramount test to be applied is
that of convenience.
Such
convenience is not only in respect of the parties or witnesses, but
also that of the court.
See:
Rail
Commuters’ Action Group v Transnet Ltd
2006 (6) SA 68
(C)
In
exercising its wide judicial discretion to order a consolidation of
actions, all factors before a court have to be judged in
its
particular context.
See:
Pepcor
Holdings Ltd v AJVH Holdings
(Pty) Ltd; Steinhoff
International Holdings NV v AJVH Holdings
(Pty) Ltd
[2021] 1 All SA 42
(SCA) at para [15].
[6]
The evidence adduced and relied upon by the applicants in the
founding affidavit in
support of the relief sought for consolidation
is based on the facts that they signed the suretyships either in
their personal
or representative capacities. I have to adjudicate the
application therefore from that point of view. The applicants admit
having
signed the suretyship agreements as alleged. In this respect
it would appear to be common cause and would not on face value need
much evidence to be adduced by the bank as the pleadings stand at the
moment. The trust, amongst others, avers that no resolution
was ever
passed to bind the trust as surety. This defence has got nothing to
do with the defences raised by first and second applicants
in respect
of their liability based on the deeds of suretyship. It would appear
to me that a court hearing the defence of the trust
would investigate
separate and distinct facts in respect of that defence compared to
those of the first and second applicants in
their personal
capacities. I am of the view therefore that the actions under cases
no 2683/2020 and 2685/2020 should be consolidated,
but in respect of
the trust, not.
[7]
Accordingly I make the following orders:
1.
The actions under case numbers 2683/2020 and
2685/2020 are consolidated under case number 2683/2020.
2.
The respondent to pay the costs of the
application for the consolidation of the cases mentioned in prayer 1.
3.
The application to consolidate case number
2686/2020 with the actions under case numbers 2683/2020 and 2685/2020
is dismissed with
costs.
C.
REINDERS, ADJP
On
behalf of the applicants:
Adv FW Janse van Rensburg
Instructed by:
Geyser
Attorneys
c/o
HENDRE CONRADIE INC
BLOEMFONTEIN
On
behalf of the respondent:
Adv S Tsangarakis
Instructed by:
Strydom & Bredenkamp
c/o EG COOPER MAJIEDT INC
BLOEMFONTEIN