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[2022] ZAFSHC 103
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Van Wyk and Another v ABSA Bank Limited and Others (3974/2022) [2022] ZAFSHC 103 (31 May 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
3974/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
PETER
JACQUES VAN WYK
1
st
Applicant
(Identity
number: [....])
JANINE
VAN WYK
2
nd
Applicant
(Identity
number: [....])
and
ABSA
BANK LIMITED
1
st
Respondent
(Registration
no: 8604794/06)
SHERIFF,
BLOEMFONTEIN
2
nd
Respondent
REGISTRAR
OF DEEDS
3
rd
Respondent
FREDERIK
JOHANNES BREDENKAMP N.O.
4
th
Respondent
SUNE
BREDENKAMP N.O.
5
th
Respondent
DAL
KRUGER N.O.
6
th
Respondent
CORAM
:
JP DAFFUE J
HEARD
ON
:
29 MARCH 2022
ORDERS
GRANTED ON
:
29 MARCH 2022
These
reasons were handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 16h00 on 31 May 2022.
REASONS
I
INTRODUCTION
[1]
During the recess and on Tuesday, 29 March 2022 I heard an alleged
urgent application
which was on 17 March 2022 postponed by agreement
between the applicants and the first respondent. There was absolutely
no reason
why I as the judge on duty had to be confronted with an
opposed application during the recess whilst it could have been
postponed
to the first available opposed motion court roll of 12
April 2022. Notwithstanding an enormous work-load I decided to deal
with
the matter and after having heard legal argument by the parties,
the following orders were issued:
“
1.
The application is dismissed with costs on a party and party scale.
2.
Reasons shall follow in due course.”
These are my reasons.
II
THE PARTIES
[2]
The first and second applicants are Peter Jacques van Wyk and Janine
van Wyk respectively,
a husband and wife and the registered owners of
Portion 2 of the farm S[....] R[....] [....], district Bloemfontein,
Free State
Province, also known as [....] T[....] A[....], [....] ,
Bloemfontein, held by deed of transfer number T[....] (“the
immovable
property”). The applicants were represented by Adv PC
Ploos van Amstel, instructed by Bokwa Inc. In fairness to Mr Ploos
van Amstel, he received instructions at the eleventh hour and was not
involved with the drafting of the affidavits or the filing
of heads
of argument on behalf of the applicants.
[3]
The first respondent is ABSA Bank Ltd, an authorised retail bank and
financial services
provider, who was represented by Adv J Els,
instructed by EG Cooper Majiedt Inc.
[4]
The second and third respondents, the Sheriff of Bloemfontein and the
Registrar of
Deeds respectively, did not oppose the application.
[5]
The fourth, fifth and sixth respondents are Mr FJ Bredenkamp, Mrs S
Bredenkamp and
Mr DAL Kruger, cited in their capacities as trustees
of the Willows Trust, registration number IT1633/05. I shall
forthwith refer
to them as the trustees, unless it is necessary to
refer to any of them in particular. The trustees were represented by
Adv GSJ
Van Rensburg, instructed by Willie J Botha Inc.
III
THE RELIEF CLAIMED
[6]
The applicants sought the following relief in their notice of motion:
6.1
that the Registrar of Deeds be interdicted and restrained from
registering transfer of the immovable property
in the name of the
Willows Trust, alternatively any third party or entity nominated by
the trustees thereof;
6.2
that the deed of sale concluded between the Sheriff of Bloemfontein
on behalf of the first respondent and
the Willows Trust be declared
null and void;
6.3
pending finalisation of the application, that the interdict to
prohibit registration of transfer shall operate
as
interim
interdict;
6.4
That the respondents are directed to pay the costs of the application
on an attorney and client scale only
in the event of opposition.
[7]
On 17 March 2022, when the application was heard for the first time,
orders were granted
pertaining to the filing of answering and
replying affidavits. It was also recorded that the respondents had
given an irrevocable
undertaking not to proceed with registration of
transfer of the immovable property pending finalisation of the
application. The
costs of that day stood over for later adjudication.
IV
THE FACTUAL MATRIX
[8]
The following is a summary of the common cause facts, alternatively
the evidence presented
by the first respondent and the trustees that
were not disputed and/or evidence presented by them that could be
accepted bearing
in mind the case law and the test applicable to the
adjudication of applications for final relief as summarised by the
Supreme
Court of Appeal as follows:
[1]
“
[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma's) affidavits, which have been admitted by
the respondent (the NDPP), together with the facts
alleged by the
latter, justify such order. It may be different if the respondent's
version consists of bald or uncreditworthy denials,
raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in
rejecting them merely on the
papers.
The
court below did not have regard to these propositions and instead
decided the case on probabilities without rejecting the NDPP's
version.”
8.1
five mortgage bonds are applicable
in casu
, to wit on 7
October 2003 a mortgage bond with registration number B11346/2003 was
registered over the immovable property in favour
of first respondent
in the amount of R800 000.00; a year later, on 27 August 2004 a
further mortgage bond number B12893/2004
was registered in favour of
the first respondent in the amount of R600 000.00; on 9 February
2006 a further mortgage bond
with registration number B2567/2006 in
the amount of R600 000.00 was registered in favour of first
respondent; the same year,
on 21 September 2006 yet another mortgage
bond was registered in favour of first respondent with registration
number B19933/2006
in the amount of R400 000.00; and finally, on
30 May 2007 a fifth mortgage bond was registered over the immovable
property
in favour of first respondent, being mortgage bond number
B10984/2007 in the amount of R600 000.00;
8.2 on
4 October 2013 first respondent issued summons against the applicants
under case number 3974/2013 in which
summons it claimed payment in
the amount of R3 179 278.55 with interest from 20 September
2013 in respect of a mortgage
bond loan account number 805 7965 285
secured by the above mortgage bonds, the arrears on the loan account
being in the amount
of R141 512.41;
8.3 on
14 May 2014 judgment by default was granted in respect of the amount
due and payable whilst the prayer
to declare the immovable property
specially executable was referred to open court;
8.4 on
10 September 2015 the immovable property was declared specially
executable whereupon the first respondent
applied for a warrant of
execution against the immovable property and as a result whereof the
Sheriff attached the property;
8.5
although the first respondent intended to proceed with a sale in
execution, rule 46A was introduced in terms
whereof judicial
oversight was required and a reserve price had to be set by the
court, consequently the first respondent was advised
to bring an
application in accordance with rule 46A which it did, the application
having been served on both the first and the
second applicants on 21
October 2021, whereupon the first applicant confirmed receiving the
documents, writing an email to first
respondent’s attorneys and
enquiring whether the arrears were to be paid in at the attorneys,
why he had not received any
correspondence, whether he had an
opportunity to defend his case and whether the case was to be heard
in the High Court;
[2]
8.6 on
18 November 2021 the property was again declared specially executable
and a reserve price in the amount
of R3 million was set and although
the applicants alleged that they had not been served with the notice
of set down for the hearing
of 18 November 2021,
[3]
they were apparently not advised that no notice of set down was
required as they failed to oppose the application which was duly
served on them on 21 October 2021;
8.7 a
sale in execution having been advertised to take place on 16 February
2022 at 10h00, the first respondent
was presented a few days before
the sale, to wit on 11 February 2022, with a deed of sale pertaining
to the sale of applicants’
immovable property in terms whereof
it was sold to a certain Mr Meyer for R2.3 million;
8.8
telephonic conversations and correspondence ensued between the
parties which I shall deal with during the
evaluation of the
evidence, but fact of the matter is that the applicants could not
raise the amount requested by the first respondent
before it would be
inclined to cancel the auction.
8.9 the
auction continued and the trustees purchased the property for the
amount of R3 million;
8.10 on 16 March
2022, a month after the auction, the applicants issued the present
application,
inter alia
alleging urgency, which application
was set down for hearing the next day and as indicated above, was
then postponed by agreement
to 29 March 2022 when I considered
arguments.
V
THE APPLICANTS’ CASE
[9]
The applicants are of the view that they are entitled to relief based
on the following
averments:
9.1
firstly “at approximately 09:40 on the 16
th
February 2022, I (the first applicant) was advised that the First
Respondent would accept the payment of R174 000.00 (hundred
and
seventy four thousand rands) and stay the sale. Whilst arranging the
payment I was called and advised that if the First Respondent
didn’t
receive the proof of payment by 10h00 then the sale would proceed. I
advised that I was attending to same.”
[4]
Consequently it is apparently the applicants’ case that an
agreement was reached that the auction would be cancelled. Fact
of
the matter is that no payment was received as undertake before the
start of the auction;
9.2
the notice of sale is materially defective insofar as the immovable
property and in particularly
the improvements thereon were
incorrectly described and/or not as contemplated in rule 46(7)(b) of
the Uniform Rules of Court;
9.3
the first respondent had suffered no potential loss or prejudice as
the equity in the immovable
property is approximately R5.8 million,
whilst it was sold for the sum of a mere R3 million;
9.4
the applicants rely on compliance with the four requisites for
interim
interdicts, but failed to accept that they were asking
final relief. The balance of convenience on which they relied was not
applicable.
VI
THE DEFENCES RAISED
[10]
The first respondent confirmed that it issued summons for the amount
mentioned above, that it
obtained judgment by default and that the
immovable property was declared specially executable whereupon it was
sold in execution
on 16 February 2022. Should the order as prayed for
by the applicants be granted, the first respondent will not obtain
payment
of the judgment debt due to it. Furthermore, it was pointed
out by the first respondent that if the sale is to be cancelled, the
trustees will also suffer prejudice in that they will not be able to
obtain transfer of a property that they validly purchased.
10.1 insofar as the
applicants contested the valuation of the immovable property in the
amount of R4.5 million presented to
the court when the application to
declare the property specially executable, the first respondent
responded in pointing out that
this valuation was in line with the
report of the Mangaung Metropolitan Municipality as well as the
valuation report filed as annexure
“PJ10” to the
applicants’ founding affidavit;
10.2 insofar as the
applicants tried to rely on one email of 25 October 2021 by first
applicant to EG Cooper Majiedt Inc,
a series of emails sent and
received during the period 11 October 2021 to 15 November 2021 were
attached as annexures “OA1”
to “OA7” and it
was the first respondent’s case that no agreement could be
reached pertaining to payment and
consequently the attorneys of
record were instructed to proceed with the application to execute at
a stage when the arrears were
in excess of R400 000.00;
10.3 it is also
pointed out that the applicants never opposed any of the steps taken
against them since the issuing of summons
in 2013 and although the
valuation report was raised on 31 October 2021, the first applicant
also raised payment proposals in his
email;
[5]
10.4 the first
respondent also pointed out that the applicants sold their property
in February 2022 for an amount as low as
R2.3 million which makes a
mockery of their version that the property is worth much more;
10.5 it was placed
on record that on 16 February 2022 at 09:33 Me Gerda Kotze of EG
Cooper Majiedt Inc spoke to first applicant
and informed him that the
offer of R175 000.00 in respect of arrears was accepted but that
payment had to be made before 10h00
and that the sale in execution
would not be cancelled if proof of payment was not received by then;
this was followed up by a further
telephone call as well as Whatsapp
messages, but no payment was forthcoming; only on 10h13 the first
applicant contacted the offices
of EG Cooper Majiedt Inc when he was
informed that the property had been sold;
10.6 it is denied
that rule 46(7)(b)(i) stipulates that anything more than a short
description of the attached immovable property
and its improvements,
the magisterial district and the physical address shall be provided
in the notice of sale. Therefore, it
is denied that it was necessary
to describe or advertise the property in such detail as alleged by
the applicants;
10.7 the first
respondent also took the point that notwithstanding the sale in
execution, the applicants took a month to file
their application on
16 March 2022.
10.8 the trustees
also filed an answering affidavit wherein they relied on the
following defences:
10.8.1
a default judgment was granted lawfully against the applicants on 14
May
2014, ie nearly eight years ago;
10.8.2
the applicants did not oppose the application to have the property
declared
specially executable and a reasonable reserve price of R3
million was set on 18 November 2021, being about three months before
the date of the auction;
10.8.3
although the applicants were provided a further opportunity to pay
the outstanding
arrears on 17 February 2022, two days after the sale
in execution in order to stop the sale, they failed to do so;
10.8.4
rule 46(7)(b)(i) states that a notice of sale shall contain a short
description
of the property, where it is situated and the street
number, if any, the place where the auction will be held and that the
conditions
of sale may be inspected at the office of the sheriff and
that the applicants’ contrary averments are incorrect and
misleading;
10.8.5
the property is two hectares in extent and not two thousand hectares
or anything
else and consequently, the information contained in the
conditions of sale is correct;
10.8.6
they will suffer harm if they are not entitled to obtain registration
of
transfer of the property.
VII
THE STATUTORY BASIS FOR THE RELIEF SOUGHT
[11]
The applicants rely on the peremptory wording of rule 46(7)(b),
reading as follows:
“
(b)
(i)
The execution creditor shall, after consultation with the sheriff
conducting the sale, prepare a notice of sale containing a
short
description of the attached immovable property, its improvements,
magisterial district and physical address, the time and
place for the
holding of the sale and the fact that the conditions may be inspected
at the office of the sheriff conducting the
sale.
(ii)
The execution creditor must furnish the sheriff
with as many copies of the notice of sale as the sheriff
may
require.”
[12]
Reliance was placed on several judgments. It is perhaps apposite to
refer to two judgments, to
wit
Messenger
of
the
Magistrate’s Court, Durban v Pillay
[6]
and
Kaleni
v Transkei Development Corporation and Others.
[7]
Both these judgments as well as the others referred to in the
applicants’ heads of arguments are distinguishable from the
facts in
casu
.
In
Pillay
the Deeds Office description of the property was provided and nothing
more. There was no indication as to where the property was
situated
with reference to a street address and/or whether it contained any
improvements. In that case a four-roomed house and
outbuildings were
erected upon the property. I quote from the judgment:
[8]
“
Although the
invalidity of the advertisement was admitted in this case, it is
expedient briefly to discuss it. It contains no description
of the
property nor of its precise situation; at most it contains a
reference to the records of the Surveyor-General and the Registrar
of
Deeds. To the man in the street it might reasonably convey that a
piece of unimproved land situated outside any built-up area
was going
to be sold in execution.”
[13]
Mr Ploos van Amstel referred to a further judgment, to wit
Chasfre
Investments (Pty) Ltd v Majavie and Others.
[9]
Again, this judgment is totally distinguishable from the facts
in
casu
.
In that case the notice of sale as advertised in the newspapers did
not even mention that a dwelling was erected on the immovable
property. The court correctly held that the notice was defective.
[14]
I quote from the judgment in
Ramgobin
v ABSA Bank Ltd
which I came across
:
[10]
“
[16]
Having found that there was justification for the exclusion of the
second dwelling house from the notice of sale what remains
to be
considered is whether or not the omission to reflect the swimming
pool on the notice of sale as an improvement falls short
of providing
a short description of the property within the contemplation of Rule
46(7)(b).
[17]
The requirements of Rule 46(7)(b) are peremptory and
“(d)isobedience to its directions may cause the debtor to
be
despoiled without corresponding reduction of his liabilities and
satisfaction of his creditors”, (see
Messenger of the
Magistrate’s Court, Durban supra);
and in regard to
the Rule’s requirement of a short description it was, in
Kaleni
v Transkei Development Corporation and Others,
stated:
“
The
notice of sale and advertisement should contain a reasonable
description of buildings and other improvements on the property
(see
Cummins v Bartlett N O) and Another …. for the obvious purpose
of attracting bidders so as to obtain as high a price
as possible.”
[18]
I have said that in this matter the notice of sale was
defective to the extent of not reflecting the swimming pool as an
improvement
feature on the land
. The present matter is
distinguishable from the case of the
Messenger of the
Magistrate’s Court, Durban supra
in that in that case
the only description of the property was no more than the following:
“
Sub-division
No. 6 of Lot 42 of Lot 107 of Mid-Wentworth of the Farm Wentworth No.
860, situate in the County of Durban, Province
of Natal, in extent 1
rood 3.37 perches”
In
the present case a substantial description of the material
improvements on the land was furnished. Accordingly I am of the view
that the advertisement was sufficiently compliant to attract bidders.
Not any omission irrespective of materiality would, in my
view,
invalidate a notice of sale and a subsequent sale in execution to
which it relates
. What Rule 46(7)(b)
does require is a description sufficiently reasonable to attract
bidders.
There is no requirement in
the Rule for a full description. I do not find the omission to
reflect the swimming pool on the notice
of sale to constitute a
material defect in the notice of sale
.
I am of the view that the notice of sale contained a short
description of the property as contemplated in Rule 46(7)(b) of the
Uniform Rules of Court, and contentions to the contrary must fail.”
(Emphasis added)
[15]
Insofar as there is no allegation that the trustees were aware of any
negotiations between applicants
and first respondent and/or that they
acted in bad faith, it is apposite to refer to
Brummer
v Gorfil Brothers Investments (Pty) Ltd en Andere
[11]
where the following was stated although it is accepted that
in
casu
the registration of transfer of the property has not been completed:
“
Waar
eksekusiestappe gedoen word en dit nog nie volvoer is nie, is daar
geen twyfel dat die Hof in gepaste gevalle ter wille van
geregtigheid
daarmee kan inmeng nie. Waar die eksekusieproses alreeds volvoer is,
is die posisie egter anders. Ander persone se
regte kom dan ook op
die spel. Die Hof sal dan slegs daarmee inmeng as daar 'n hersienbare
onreëlmatigheid in die proses was
wat die skuldenaar benadeel
het, met ander woorde waar die proses nie ooreenkomstig die
toepaslike voorskrifte uitgevoer was nie.”
VIII
EVALUATION OF THE EVIDENCE AND SUBMISSIONS ON BEHALF OF THE PARTIES
[16]
I have referred to the
Zuma
and
Plascon-Evans
judgments
above. During my evaluation of the factual disputes I shall keep the
test to be applied in opposed motion procedure in
mind.
[17]
Various submissions were made during the application on behalf of the
applicants pertaining to
s 26(3) of the Constitution of the Republic
of South Africa which states that no one may be evicted from their
home without an
order of court and after considering all relevant
circumstances. The statutory requirement in rule 46A that a reserve
price be
placed on the primary residence of a debtor is to protect
the home owner in default to ensure that the immovable property is
not
sold significantly below its market value. Firstly, this is not
an application for ejectment and secondly, the applicants had
sufficient
knowledge of the application to declare their immovable
property specially executable, but failed to present to that court
any
relevant facts in order to possibly convince the court not to
make an order against them.
[18]
It cannot be disregarded that the applicants are in serious financial
trouble since 2013, nine
years ago. They have apparently been thrown
life lines along the way. It appears from the application papers that
notwithstanding
the arrears payable to the first respondent, they are
also in serious financial trouble pertaining to their accounts with
Mangaung
Metropolitan Municipality as well as Centlec. On the date of
the auction they owed these two entities the amounts of R459 232.38
and R233 329.06 respectively as is apparent from the deed of
sale annexed to the first applicant’s supplementary
affidavit.
[12]
[19]
The applicants knew that the first respondent obtained an order to
declare the property specially
executable as long ago as 2015 and
that no execution could take place as a result of the introduction of
rule 46A which necessitated
the first respondent to apply again for
an order declaring the property specially executable on 18 November
2021.
[20]
Notwithstanding the steps taken against them, they waited until the
week before the auction to
take steps in an effort to prevent the
auction to continue.
[21]
The applicants have only themselves to blame for the predicament in
which they find themselves.
The first respondent as the money lender
is entitled to finality and to obtain payment of the judgment.
[22]
I am satisfied that there was never an agreement between first
applicant and the first respondent,
acting thought its attorneys and
their personnel, that the auction would be cancelled without proof of
payment of the amount of
R175 000.00. The first applicant, who
waited to the eleventh hour, indicated that he would make payment of
the agreed amount
of R175 000.00 (not R174 000.00 as
alleged by him), but he was warned to ensure that proof of payment
was provided before
the auction.
[13]
It is apparent from first applicant’s version that he did not
have this amount available and had to rely on a friend, one
Mr Andre
Fourie, to pay this amount on his behalf.
[14]
This did not eventuate and the auction proceeded. He was in breach of
his undertaking, but tried to blame first respondent, its
attorneys
and the two ladies for not cancelling the auction. Bearing in mind
the applicable test enunciated in
Plascon-Evans
and
Zuma
no order can be granted in favour of the applicants as the first
respondent’s version must be accepted as it cannot be rejected
as far-fetched and/or implausible. The first respondent’s
version is supported by the Whatsapp messages.
[23]
The trustees, the innocent purchasers of the immovable property on
the auction which was duly
held after being properly authorised and
advertised, are entitled to their bargain and there is no reason why
they should be prejudiced
by an order cancelling the sale.
[24]
Finally, it is recorded that the applicants failed to attach the
notice of sale as advertised
in a local newspaper and the Government
Gazette to their application papers. All submissions in this regard
should be rejected
without even considering them in the absence of
the notice of sale. The closest that the first applicant came to this
burning issue
was the following testimony:
[15]
“
42.
DEFECTIVE
NOTICE OF SALE
I
place on record that even though I dispute that the First Respondent
is entitled to proceed with the sale of the property, I am
advised
that the property must be properly described in the notice of sale in
order to attract bidders to a sale in execution.
43.
This
was brought to my attention whilst consulting with my present
attorneys to draft this Application on or about the 08
th
of March 2022, and whilst perusing the Notice of Sale. I was advised
to peruse the notice of sale carefully in order to ensure
that the
property had been
fully and properly described
.
44.
This
is the first real instance that I had come to realise that the notice
of sale was seriously and materially defective. I submit
with respect
that there is no wilful or deliberate oversight on my part.
45.
A
copy of the Notice of Sale was compiled by the Second Respondent.”
[25]
After dealing with his alleged inspection of the notice of sale in
the presence of his attorney,
who did not submit a confirmatory
affidavit, the first applicant proceeded to deal with the conditions
of sale as set out in the
deed of sale. The deed of sale was not
attached to the founding affidavit, but to a supplementary affidavit
filed the morning before
the matter was to be heard. Although
reference was made to a notice of sale in the founding affidavit, the
applicants’ heads
of argument as well as during the oral
argument of Mr Ploos van Amstel. I am still looking for a notice of
sale. No such document
forms part of the documentation before the
court.
[26]
The applicants averred that a much more detailed description of the
immovable property and improvements
thereon should have been
provided. As said, no notice of sale was placed before the court, but
for purposes of the argument I accepted
that the notice of sale
contained same description as set out in the conditions of sale.
[27]
The applicants went so far to state that a detailed description of
the improvements on the immovable
property should have been given and
failing which, the notice of sale should be held to be defective. The
details to be provided
according to the applicants reminded me of a
full page advertisement by a leading estate agency in one of the
prestigious magazines
to attract the attention of affluent and
wealthy investors. Details such as
[16]
“Stucco Plaster finish, Calcote Aluminium wood grain finished
windows and doors, Zimbabwean Teak & Rosewood floors, Patio
area
with enclosed spa bath & built-in braai”, to name just a
few finishes do not belong in a notice to advertise a sale
in
execution.
[28]
The property description contained in the conditions of sale,
referring to improvements such
as the two houses, cottage, workshop
and outside area consisting of a servants room, swimming pool and
stables to mention just
some of the details, was more than sufficient
to comply with rule 46(7)(b)(i). The street address of the property
was provided,
as well as the extent of the property, to wit 2,0000
hectares, or put otherwise, two thousand square metres. The first
applicant’s
version that the property size is 2 200
hectares is misleading, incorrect and stands to be rejected as
false.
[17]
IX
CONCLUSION
[29]
Consequently, I made the orders contained in paragraph 1 above based
on my evaluation of the
evidence and the submissions of the parties.
JP
DAFFUE J
On
behalf of the Applicant:
Adv PC Ploos van Amstel
Instructed
by:
BOKWA INC
BLOEMFONTEIN
On
behalf of the 1
st
Respondent:
Adv J Els
Instructed
by:
EG Cooper Majiedt Inc
BLOEMFONTEIN
On
behalf of the 4
th
, 5
th
& 6
th
Respondents:
Adv GSJ van Rensburg
Instructed
by:
Willie J Botha Inc
BLOEMFONTEIN
[1]
National
Director of Public Prosecutions
v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 26,
Plascon-Evans
Paints
Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 - 5
[2]
Founding affidavit: Annexure “PJ2”
[3]
Founding affidavit: para 29
[4]
Ibid
:
para 35
[5]
Answering affidavit: Annexure “OA8”
[6]
1952 (3) SA 678 (A)
[7]
1997 (4) SA 789
(TkS) at 719 B-C
[8]
Pillay
loc cit
at pp 683H - 684A
[9]
1971 (1) SA 219
(CPD)
[10]
2008 (JDR) 0947 (D) at paras 16, 17 & 18
[11]
1997 (2) SA 411
(T) at 413 I; the case went on appeal, but the
judgment of the High Court was confirmed:
Brummer
v Gorfil Brothers Investments (Pty) Ltd en andere
1999 (3) SA 389 (SCA)
[12]
See also the accounts of these entities attached to the first
respondent’s application to have the property declared
executable which application is attached to the first applicant’s
founding affidavit
[13]
Answering affidavit: paras 24.9 – 24.19; confirmatory
affidavits of Me GP Kotze and Me TM Van Lingen, read with the
Whatsapp messages attached as annexure “OA13”
[14]
Replying affidavit: para 29
[15]
Founding affidavit: paras 42 - 45
[16]
Founding affidavit: para 50
[17]
Founding affidavit: para 48