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[2022] ZALMPPHC 11
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Van der Westhuizen N.O and Another v Land and Agricultural Development Bank of SA and Others (3173/2020) [2022] ZALMPPHC 11 (14 February 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NUMBER: 3173/2020
REPORTABLE: YES/NO
OF INTEREST TO THE
JUDGES: YES/NO
REVISED.
In
the matter between:
CHRIS-JUAN
VAN DER WESTHUIZEN N.O
1
ST
APPLICANT
JAN
KRUGER ROBBERTSE N.O
2
ND
APPLICANT
And
THE
LAND AND AGRICULTURAL
1
ST
RESPONDENT
DEVELOPMENT
BANK OF SA
THE
MASTER OF THE HIGH COURT LIMPOPO
2
ND
RESPONDENT
REGISTRAR
OF DEEDS, LIMPOPO
3
RD
RESPONDENT
MH
COETZEE BOERDERY
4
TH
RESPONDENT
DEON
MARIUS BOTHA
5
TH
RESPONDENT
SHUAIB
MAHOMED
6
TH
RESPONDENT
INTERVENING
PARTY:
CORNELIA
MARIA CLOETE N.O
1
ST
INTERVENING
RENEILWE
DELIN N.O
2
ND
INTERVENING
JUDGEMENT
MANGENA:
AJ
[1] On the 24
th
June 2021 this court granted a final order of sequestration against
Sweet Home Mountain Lodge Trust. The order resulted in the
trust
being divested of its rights to manage its assets and same were
placed in the hands of the trustees duly appointed by the
Master of
the High Court.
[2] At the time of
sequestration, the trust was the registered owner of an immovable
property described as Farm Sweethome 322, Registration
Division KQ,
Limpopo Province, in extent 1729, 0445 hectares. It is the
transactions relating to this farm which are at the centre
of this
litigation. This is how it happened.
[3] Jan Kruger Robbertse
concluded a credit loan agreements with Unigro Financial Services
Proprietary Limited for a total sum of
R20 million. These loans were
taken in 2013 and 2014 respectively. As security for his indebtness,
the trust entered into an unlimited
suretyship agreement with Unigro
Financial Services (Pty) Ltd (Unigro) and committed itself to pay for
Mr Robbertse should he default
in his repayment. In 2013 the trust
hypothecated the property (Farm) as security for Mr Robbertse`s debt
by registering a mortgage
bond for R15 000 000-00. In 2014,
a second mortgage bond was registered for R5000 000-00.
[4] The credit loan
agreements were later ceded to the Land and Agricultural Development
Bank of South Africa (Land Bank). When
Mr Robbertse defaulted on his
repayment, Land Bank instituted legal proceedings for the repayment
of all balance owing on various
accounts as well as cancellation of
the agreements. It also instituted sequestration proceedings against
the trust and obtained
a provisional order on 27 October 2020. It is
this provisional sequestration order which was confirmed as final on
24 June 2021
by Makgoba JP.
[5] Upon receipt of the
final sequestration order and their appointment as trustees of the
insolvent estate of the Sweet Home Mountain
Trust, the trustees took
over the management of the farm and placed it on sale. I interpose to
state that the trustees, Mr Robbertse
and Van Der Westhuizen had on
06 April 2021 appointed Mr Deon Marius Botha, the fifth respondent
and the provisional trustee at
the time; their lawful agent and
nominee to act on their behalf and sign documents relating to the
sale of the farm Sweet Home.
Notably the Power of attorney further
states that “We tender to unconditionally support and not
oppose the transfer of the
Sweet Home Farm in our personal
capacities.”
[6] On the 19
th
June 2021, the trustees accepted an offer of R23 000 000-00
to purchase the farm property. The acceptance was subject
to the
Master of the High Court extending their powers. The Master approved
the sale on 24 August 2021.
[7] The applicants in
their capacities as the trustees of the trust launched an application
for rescission of the “default
judgment” granted by
Makgoba JP on 24 June 2021 placing the trust under final
sequestration. This application is opposed
by the first, fifth and
sixth respondents and is still pending before this court. Pending
rescission of the default judgment, the
applicants requested written
confirmation from the first respondent that she will not proceed with
the sale of the immovable property.
No such written confirmation was
made and instead the first respondent filed an opposing affidavit to
the rescission application
wherein the sale of the farm was
confirmed.
[8] Unhappy with the turn
of events, the applicants approached this court on an urgent basis
for an order suspending the operation
and execution of the order
finally sequestrating the Sweet Home Mountain Lodge trust, pending
the finalisation of the rescission
application. This application is
opposed by the first, fifth and sixth respondents primarily on the
basis that it is male fide,
constitute an abuse of process and
therefore not in the interest of justice.
[9] At the commencement
of the proceedings I prevailed upon counsel to argue both points in
limine and merits simultaneously as
they appear to be closely
interlinked. Counsel duly obliged and I am grateful for their kind
understanding. I duly considered the
submissions made including all
the points in limine raised and given the conclusion reached, I
propose to dispose of the matter
on its merits.
[10] Rule 45A of the
Uniform Rules provides that the court may suspend the execution of
any order for such period as it may deem
fit. Both counsel agreed
that the rule grants the court a wide discretion which must be
exercised judicially. It is also accepted
as a general principle that
a court will grant a stay of execution where a real and substantial
injustice would otherwise occur.
Waglay J (as he then was) summarised
the legal position on the application of Rule
45A in
Gois v
Van Zyl, 2011(1) SA 148(LC)
at para 37 as follows:
“
The
general principles for the granting of a stay in execution may
therefore be summarised as follows:
(a)
A court will grant a stay of execution where real and substantial
justice requires it or where injustice would otherwise result.
(b)
The court will be guided by considering the factors usually
applicable to interim interdicts, except where the applicant is
not
asserting a right, but attempting to avert injustice.
(c)
The court must be satisfied that
(i) The applicant has a
well-grounded apprehension that the execution is taking place at the
instance of the respondent(s); and
(ii) Irreparable harm
will result if execution is not stayed and the applicant ultimately
succeeds in establishing a clear right
(d)
Irreparable harm will invariably result if there is a possibility
that the underlying causa may ultimately be removed, i.e.
where the
undertaking causa is the subject –matter of an on-going dispute
between the parties.
(e)
The court is not concerned with the merits of the underlying
dispute-the sole enquiry is simply whether the causa is in dispute.
[11]
In Van Rensburg
and Another NNO v Naidoo and others NNO, Naidoo and
others NNO
v Van Rensburg NO and others,
2011 (4) SA 149
(SCA
) Navsa JA
confirmed the correctness of the approach adopted by Waglay J and
said the following with regard to the inherent powers
of the court on
the staying of execution:
“
[51]
Apart from
the provisions of Uniform Rule 45A, a court has inherent
jurisdiction, in appropriate circumstances, to order a stay
of
execution
or
suspend an order. It might, for example, stay a sale in execution or
suspend an ejectment order. Such discretion
must be exercised
judicially.
As a general rule, a
court will only do so where injustice will otherwise ensue.
[52] A court will
grant a stay of execution in terms of Uniform rule 45A where the
underlying cause of judgment debt is being disputed,
or no longer
exists, or when an attempt is made to use the levying of execution
for ulterior purposes. As a general rule, court
acting in terms of
this rule will suspend the execution of an order where real and
substantial justice compels such action.”
[12] Guided by the above
principles, I proceed to consider whether the circumstances of this
case justify an order suspending the
operation and execution of the
final sequestration. Conversely put, will there be an injustice if
the liquidation process were
to be allowed to continue? Adv. Van der
Merwe, counsel for the trust, submitted that the Farm is the only
major asset of the trust
and if it is to be sold, there will be no
use in rescinding the default Judgment. He argued that the trust is
not indebted to the
Creditors but stood as surety for the indebtness
of Mr Robbertse who is disputing the claims by the Creditors. The
cases have not
been adjudicated and the respondents were wrong to
obtain a sequestration order in respect of a disputed claim. The
trust relies
on the defences of the Principal debtor (Mr Robbertse)
to resist the Creditors claim.
[13] The respondents
represented by Adv Cilliers SC contends otherwise and it is submitted
on their behalf that the application
for the stay of the
sequestration proceedings is mala fide and constitutes an abuse of
court process. In support of this contention
counsel stated that the
applicants were aware of the sequestration proceedings and made a
deliberate and intentional choice not
to oppose them. On the 23 April
2021 prior to the granting of the final order, the Judge President
convened a meeting of all the
affected parties with a view to manage
other cases involving Mr Robbertse and the trust. The applicants were
represented by Mr
A Van der Merwe (Counsel) and W. Swanepoel
(Attorney). With regard to this case in particular, the minutes
reflect that all papers
had been filed and the respondent was to file
its heads of argument by 14 May 2021 and the matter was allocated a
hearing date
of 24 June 2021.
[14] The applicants
failed to comply with the Judge President’s directives
regarding the filing of the heads of argument and
instead filed a
Rule 35(12) notice calling upon the respondents to provide certain
documents. On the date of the hearing, the applicants
applied for a
postponement ostensibly to be furnished with the requested documents
mentioned in Rule 35(12) notice. The application
was unsuccessful and
counsel then informed the court that he had no instructions to
proceed with the matter and applied to withdraw
from further
participation. The court allowed him to withdraw and the matter
proceeded without applicant’s oral submissions.
The court
granted a final sequestration order.
[15] The respondents
argue that given the conduct of the applicants it will not be in the
interest of justice that the sequestration
proceedings be stayed
pending rescission. They submit forcefully that the applicants are
the authors of their own misfortune by
disregarding the rules and
deliberately failing to comply with the Judge President’s
Directives. Their conduct does not deserve
of their protection by
this court.
[16] I agree with the
respondents submission that the applicants are solely to blame for
the quandary they find themselves in. Any
seasoned litigation
practitioner knows that an applicant for postponement seeks an
indulgence. The Constitutional court, per Mokgoro
J, authoritatively
put it as follows:
“
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement
seek
an indulgence from the court. Such a postponement will not be granted
unless this court is satisfied that it is in the interest
of justice
to do so…whether a postponement will be granted is therefore
in the discretion of the court and cannot be secured
by mere
agreement between the parties.”
National Police Service
Union and
others v Minister of Safety and security and others,
2000 (4) SA 1110
(cc) at para 4.
[17] Once a postponement
is refused, the party asking for a postponement should be able to
proceed. In
Take and Save Trading CC and others v Standard bank
of South Africa Ltd,
2004 (4) SA 1
(SCA)
Harms JA in a case
similar to the present this one where counsel withdrew after the
court refused a postponement, said the following:
Fairness of court
proceedings requires of the trier of fact to be actively involved in
the management of the trial, to control
the proceedings, to ensure
that public and private resources are not wasted, to point out when
evidence is irrelevant, and to refuse
to listen to irrelevant
evidence. A supine approach towards litigation by judicial officers
is not justifiable either in terms
of the fair trial requirement or
in the context of resources.
One of the oldest tricks in the book
is the practice of some legal practitioners, whenever the shoe
pinches, to withdraw from the
case (and more often than not to
reappear at a later stage), or of clients to terminate the mandate
(more often than not at the
suggestion of the practitioner) to force
the court to grant a postponement because the party is then
unrepresented. Judicial officers
have a duty to the court system,
their colleagues and the parties to ensure that this abuse is curbed
by, in suitable cases, refusing
postponement. Mere withdrawal by a
practitioner or the mere termination of a mandate does not, contrary
to popular belief, entitle
a party to a postponement as of right.”
[18] The applicants do
not dispute that they failed to comply with the directives issued by
the Judge President with regard to filing
of their heads of argument
and appearing in court on the 24 June 2021 for the hearing of the
matter. This admission weighs heavily
with me in the determination of
the relief the applicants seek. I find it opportunistic for a party
to walk away from a court constituted
to give him a fair hearing on
an existing dispute and later turn around and claim that he was not
afforded an opportunity to state
his case. The machinery of justice
must, according to the applicants, grind to a halt whenever it suits
them. They and they alone
determine when will the respondents and the
creditor’s interest they have been appointed to protect receive
justice from
this court. This attitude is repulsive to good order and
the administration of justice. It should not be tolerated in the name
of access to justice. Every person including the respondents have a
right of access to justice and when they litigate their expectations
are that their matters will be adjudicated in accordance with the
rules and justice will be dispensed speedily. It is unfair for
the
applicants to spurn the court, violate its rules and still seek its
protection relying on the rules they have violated.
[19] The applicants are
clearly malicious in their intent and their application for
rescission of judgment lacks the hallmarks of
honesty and sincerity.
Whilst it is true that I am not called upon to make a determination
on the prospect of their success, I
am justified to take into account
the circumstances which led to the “default Judgment”
being obtained against them.
In this regard I am duty bound to make
an assessment of the bona fides of the applicants in their rescission
application and the
grounds they rely upon. I do so not to pre-empt
the outcome or to pre-judge it but to assess their sincerity.
Applicants have a
benefit of legal representation and would have been
aware by now what the consequences of their walk away from the court
proceedings
on 24 June 2021 was. Their legal counsel would have by
now advised them that the constitutional court said: “the words
granted
in the absence of any party affected thereby as they exist in
Rule 42 (1) (a) exist to protect litigants whose presence was
precluded,
not those whose absence was elected. Those words do not
create ground of rescission for litigants who, afforded procedurally
regular
judicial process, opt to be absent……. I do not,
however accept that litigants can be allowed to butcher, of their
own
will, judicial process which in all other respects has been carried
out with the utmost degree of regularity, only to then,
ipso facto
(by the same act), plead the “absent victim”. If
everything turned on actual presence, it would be entirely
too easy
for litigants to render void every judgment and order ever to be
granted, by merely electing absentia (absence
)” Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public
Sector including
Organs of the State
[2021] ZA CC 28.
[20] The Constitutional
Court is the highest court in the land and the views expressed
therein constitute good law in the administration
of justice. Justice
is best served when all parties to the litigation are governed by the
same rules and play by them. It is denuded
of its value and purpose
when others deliberately ignore the rules and frustrate the system.
In time, it will collapse and the
social order upon which it is
predicated will be adversely affected. The court has a duty to
protect its own processes against
those who seek to abuse it for
their own selfish ends. I conclude with the words of the Supreme
Court Justices of Zimbabwe who
30 years ago said the following:
“
It is the policy
of the law that there should be finality in litigation. On the other
hand, one does not want to do injustice to
litigants. But it must be
observed that in recent years, applications for rescission, for
condonation, for leave to apply or appeal
out of time, and for other
relief arising out of delays either by the individual or his lawyer,
have rocketed in numbers. We are
bombarded with excuses for failure
to act. We are beginning to hear more appeals for charity than for
justice. Incompetence is
becoming a growth industry. Petty disputes
are argued and then re-argued until the costs far exceed the capital
amount in dispute.
The time has come to remind the legal profession
of the old adage:
(vigilantibus non dorminientibus jura
subveniunt)
- roughly translated the law will help the vigilant
but not the Sluggard:
Ndebele v Ncube,
1992 (1) ZLR 288
S
[21] Having perused the
papers filed, it is clear that at the heart of the applicant’s
apprehension for injustice is the sale
of the farm. This fear is
unfounded and unjustified on the facts of this case as the trustees
have voluntarily and without coercion
signed a power of attorney
authorising the fifth respondent to conclude an agreement for the
sale of the farm. This power of attorney
has not been revoked. At the
time the applicants signed the power of attorney, they knew that the
fifth respondent had been appointed
a provisional liquidator and they
had filed their opposing papers to the sequestration proceedings.
Taken in context, the sale
of the farm cannot be a reason justifying
the institution of the Rule 45A application. I am therefore not
persuaded that there
will be any substantial injustice if the sale of
the farm is proceeded with. This would of necessity mean as well that
no case
has been made out for the stay of the sequestration
proceedings.
[22] In the circumstances
the application is dismissed with costs including the costs of one
senior counsel.
MANGENA
AJ
ACTING JUDGE OF THE
HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
For the
Applicants:
A VAN DER MERWE
Instructed
by:
DIEDERIKS OUDEGEEST ATTORNEYS INC
For the
Respondents:
J CILLIERS SC
Instructed
by:
STRYDOM & BREDENKAMP INC
Date Heard
on:
08 FEBRUARY 2022
Date
Delivered:
14 FEBRUARY 2022