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[2022] ZALMPPHC 15
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Trustees for the Time Being of the "Lona Venter Familie Trust-IT [....]" and Others v Firstrand Bank Limited t/a Wesbank and Another (1490/2022) [2022] ZALMPPHC 15 (3 March 2022)
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Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1490/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE:
03/03/2022
IN
THE MATTER BETWEEN:-
THE
TRUSTEES FOR THE TIME BEING OF THE
"LONA
VENTER FAMILIE TRUST-IT:[....]"
1
ST
APPLICANT
ELANIE
NACHTEGAAL HAVENGA
N.O
2
ND
APPLICANT
(In
her capacity as Trustee of the "LONA VENTER
FAMILIE
TRUST-IT:[....]")
ELANIE
NACHTEGAAL HAVENGA
3RD APPLICANT
FERREIRA
MACHIEL NEL
N.O
4
TH
APPLICANT
(In
his capacity as Trustee of the "LONA VENTER
FAMILIE
TRUST-IT:[....]")
FERREIRA
MACHIEL
NEL
5
TH
APPLICANT
LONA
VENTER
N.O
6
TH
APPLICANT
(In
her capacity as Trustee of the "LONA VENTER
FAMILIE
TRUST-IT:[....]")
LONA
VENTER
7
TH
APPLICANT
LEONARD
VENTER
N.O
8
TH
APPLICANT
(In
her capacity as Trustee of the "LONA VENTER
FAMILIE
TRUST-IT:[....]")
LEONARD
VENTER
9
TH
APPLICANT
ROUAN
VENTER
N.O
10
TH
APPLICANT
(In
her capacity as Trustee of the "LONA VENTER
FAMILIE
TRUST-IT:[....]")
ROUAN
VENTER
11
TH
APPLICANT
AND
FIRSTRAND
BANK LIMITED t/a WESBANK
1
ST
RESPONDENT
THE
SHERIFF OF THE HIGH COURT, LIMPOPO
DIVISION,
POLOKWANE
2
ND
RESPONDENT
JUDGMENT
MANGENA
AJ
''In
alI intercourse with my professional brethren, I will be always
courteous. No man’s passions
shall intimidate me from
asserting fully my own or my clients rights, and no man’s
ignorance or
folly
shall induce me to take any advantage of him, I shall deal with them
all as honorable men,
ministering
at our common alter'
David
Hoffman, A course of legal study
INTRODUCTION
[1]
This is an urgent application for an
order suspending the execution of the orders granted against the
Applicants
.
The
orders were granted subsequent to the institution of the legal
proceedings by the Respondent against the Applicants.
The
facts
giving rise to the application are set
out below
.
BACKGROUND
[2]
On or
about
26
April
2017
,
the Applicants entered into an
instalment sale
agreement
with
Unigro Financial Services (Pty)
Limited (Unigro),
Registration
Number
2008/009529/07
for the purchase of
1x
Nuwe 2017 John Deere CS 690
Katoen Stripper, engine number:
[....],
chassis number
INOC6
9SCH4065007
.
The
total
cost
of
the
agreement
was
R9
720
101.36
inclusive
of VAT.
[3]
The purchase price was payable in
4
annual instalment
payments in the
amount
of
R1 944 020.27
effective
from
30 November 2017
with
a final instalment due on
30
November
2021
.
[4]
Firstrand Bank Limited t/a Wesbank
issued summons against the
Applicants alleging that as at
18
th
August 2020
the Applicants were in
arrears on their financial obligations in an amount of
R3
375 679.18
.
Attached
to the
summons
was
instalment sale agreement concluded between the Applicants and
Unigro
Financial Services (Pty) Limited
as
well an agreement between
Unigro
Financial Services (Pty) Limited
and
Wesbank (A division of Firstrand Bank
Limited).
The other parties to the
agreement are Grocapital Financial Services (Pty) Ltd and
Afgri-operations Limited
.
Clause
6 of the agreement provides for cession and delegation of contracts
by Unigro to Wesbank
.
The
agreement was signed on
02
nd
March 2015
.
[5]
Upon receipts of the summons
,
Applicants appointed
Tiaan
Smuts Attorneys
to represent them in
these proceedings
.
On
the
13 April 2021
,
the attorneys served and filed a
notice of appointment as attorneys of record
.
The notice stated that all further
pleadings, notices
,
processes
and documents should be served at their offices c/o their
correspondents
.
The
notice has both the telephone numbers and e-mail addresses of the
respective law firms
.
[6]
When no notice of intention to defend
was forthcoming
,
Wesbank
represented by
Hack Stupel and Ross
Attorneys
approached the Registrar
and obtained an order confirming cancellation of the agreement and
return of the
1 x Nuwe 2017 John
Deere CS 690 Katoen Stripper
.
The
date stamp on the court orde
r i
s
02 December
2021.
[7]
On the
25
th
January 2022
,
the
Registrar authorised the
Sheriff of
Mokopane
to take the 2017 John Deere
CS 690 Katoen Stripper from the Applicants and place
it in possession of Wesbank
.
The Sheriff did as instructed and
attended at the Applicant's farm on
02
February
2022.
[8]
Surprised at the turn of events
,
Applicant's attorneys addressed a letter
to Hack Stupel and Ross Attorneys confirming an earlier telephone
discussion and recorded
the following requests
:-
.
[1]
[2]
[3]
Accordingly
,
we
requested you to kindly
,
yet
urgently
,
provide
us with the application papers in
respect of the default judgment taken against our client
,
together with the court order
granted against our client. We shall be grateful to receive same as a
matter of urgency.
[4]
Our clients have bona fide defences to your client's claims
.
Although we have not yet received
the application papers
,
we
are of the view that good
prospects exist for our clients to have the default judgment
rescinded.
[5]
We request that your client hold over on any attempted attachment
and/or removal steps pursuant
to the Court order
it obtained in our client
'
s
absence
,
at
least until such time that
we
have been afforded a reasonable opportunity to consider the
application
papers
.
[6]
In the event that your client does not agree to such request our
clients will have no alternative
but to proceed with an urgent
application to stay such process and/or rescind the judgment.
[7]
Moreover
,
we
tender that in the interim whilst we await the application(s) papers
and consider same, that our client will not in any way move
or
operate the cotton stripper, which is
a
56 tonne machine
..
.......In
an effort to further demonstrate our client
'
s
bona
tides
a
tracking
device
can
be
installed
to
the cotton stripper for
monitoring by your client.
[9]
Hack Stupel and Ross Attorneys responded
to the letter advising that it does have
a copy of the application for a default
Judgment. It further advised that the proposal had been rejected and
the item will be removed.
In the intervening period, the local
correspondents were frantically searching for the court file at the
Registrar's office
and
imploring on the Polokwane office of Hack Stupel and Ross Attorneys
to assist but no avail. This is despite the fact that they
undertook
to pay for the copies. The
letter
concluded by stating that
"your
collegial co-operation will be greatly
appreciated
".
Again
no response was given.
[10]
The flurry of correspondences culminated
in a missive dated 14 February 2022 from Tiaan Smuts Attorneys on
behalf of the Applicants
addressed to Hack Stupel and
Ross Attorneys wherein it was confirmed
that two applications
,
namely
"urgent applications suspending the irregular order obtained by
your offices, as well as a rescission application in
respect of the
said order" have been actioned and set down for hearing on 22
February 2022. The letter was accompanied by
unissued application
papers and reiterated a tender for attachment without removal as the
machine was required for harvesting purposes.
[11]
Wesbank and its attorneys were unfazed
by the tender and the offer for an
"
amicable"
settlement. They instructed the sheriff to move ahead with the
removal
despite
being in possession of the application
albeit
unissued
.
The removal necessitated an amendment of
the prayers in the Notice of motion to include a prayer for the
return of the cotton stripper
which was removed on the date the
applications were issued.
[12]
The First Respondent, Wesbank is
opposing the application for the suspension of
the orders and has argued that the
matter is not urgent. It is contended that Applicants have failed to
set out facts and circumstances
explaining why they could not get
substantial relief in due course
.
In
their defence
,
applicants
stated that the matter is urgent in that the equipment (cotton
stripper) is required for harvesting cotton in the next
two months
and if it is removed, they will suffer
"
catastrophic
damages if the suspension order is not granted and the sheriff is
allowed to remove the cotton stripper. It was further
submitted on
their behalf that given its sheer size and the expertise required to
assemble it
,
it
will not be possible to acquire an alternative stripper
.
In my view
,
the applicants met the threshold for
urgency and this issue should not detain us further
.
[13]
Advocate Jacobz
further
argued on behalf of Wesbank that the relief sought by
the applicants was incompetent as the
order and warrant have been executed and only the sale in execution
which is still to take
place can be halted. He submitted that the
bank had given an undertaking that the sale in execution shall not
take place pending
the rescission application
.
He objected to the order for the return
of the cotton stripper on the basis that Rule 45A cannot be read to
include
the power to order an execution
creditor to return the goods already attached and removed
.
As I understand him a suspension order
shall not have retrospective effect.
[14]
The general principles for the
suspension of orders are trite and a detailed exposition thereof was
given by
Binns-Ward J in Nicolaas
Euverhardus Phillippus Stoffberg N.O and Another v Capital Harvest
(Pty) Ltd
Case no 2130/2021
delivered on
21 March 2021.
Regarding
the power of the court and its limitations on the exercise of the
discretion whether to stay/suspend the order(s) he said:
"The
broad and unrestricting wording of Rule 45A suggests that
it was intended to be a restatement of
the courts common law discretionary power. The particular power is an
instance of the court's
authority to regulate its own process. Being
a judicial power
,
it falls to be exercised judicially
.
Its exercise will therefore be fact
specific and the guiding principle will be that execution will be
suspended where real and substantial
justice requires that. "Real
and substantial justice" is a concept that defies definition
,
rather like "good cause" or
'substantial
reason'.
It is for the court to decide on the facts of each given case whether
considerations of real and substantial justice are
sufficiently
engaged to
warrant
suspending the execution of a judgment; and if they are, on what
terms any suspension it may be persuaded to allow should
be granted
".
[15]
The contention by Advocate Jacobz cannot
be supported. Rule 45A grants the court a wide discretion to suspend
an order for execution,
which discretion is limited only by
consideration that it must be exercised judicially. The overriding
consideration
is the interests of justice. In as much
as the court has the power to enforce its orders, it should equally
have the power to suspend
orders from taking effect where real and
substantial injustice would occur. This will include the power to
order that the suspension
be with retrospective effect. To restrict
and limit the power to future operations will amount to the tying of
the court's hands
rendering it powerless in the eyes of injustice
taking place within its corridors
.
I
say so because a court has an inherent
power to regulate and control its own
process subject to the Rules of Court. The court will, generally
speaking
,
grant
a stay of execution where real and substantial justice requires such
a stay
or
put otherwise
,
where
injustice would otherwise be done
.
Strime v Strime,
1983 (4) SA 850
(CPD) @ PAGE 852
.
[16]
In
Fluxman
v Fluxman,
1958 (4) SA 409(W)
Trollip AJ
(as
he then was) commenting on the use of the word rescind
,
suspend or vary in relation to the power
of the court said that the power to rescind
,
vary or suspend an order in its
ordinary connotation means abrogating
,
annulling or revoking the order from its
inception and it could therefore be made with retrospective effect.
It must also have been
intended in consequence that the order could
be suspended with retrospective effect. Moreover the power to
rescind
,
suspend
or vary is made dependent upon the existence of "good cause
".
As good cause
,
as shown
,
would have operated in the past it is
reasonable to suppose that the legislature intended the court to have
the necessary power
to grant relief in respect of the past period
as well. Lastly
,
it seems obvious from the section that
the intention was that the court on good cause shown should be free
to be able to do complete
justice between the parties having regard
to all the circumstances
.
[17]
On the authority of
Fluxman
above, this court can suspend the
orders granted against the Applicants with retrospective effect if it
is in the interests of justice
to
do
so or doing so will mitigate against real and substantial injustice.
[18]
On the facts of this case
,
there is no gainsaying
the fact that applicants are within the
protection of Rule 45A in that they are disputing the cause of the
debt relied upon by Wesbank
to attach and remove the cotton stripper
.
They have challenged the legal authority
of Wesbank to institute the proceedings against them and intend to
raise this issue as
one of the basis to challenge the default
judgment granted against them
.
[19]
It is not for me to express my view with
regard to the prospects of success save to state that I have given
due consideration to
averments made therein and noted
that the cession agreement relied upon
by Wesbank predates the sale agreement with Unigro
.
It may well be that it includes cession
of future debts but that will be for the court hearing the rescission
application to deal
with
.
[20]
Having considered the papers filed and
the submissions made by counsel, I am inclined to grant the prayers
contained in the amended
notice of motion. The conduct of Hack Stupel
and Ross Attorneys for Wesbank with regard to the removal of the
cotton stripper in
spite of the fact that there was an impending
urgent application for the stay of the warrant demonstrate the height
of incivility
and discourtesy to colleagues
.
Lawyers are officers of the court and
they owe to each other respect and cordiality at all times. Attorneys
for Wesbank failed in
this
basic duty
and their
failure
resulted
in
an unnecessary
and
probably
an
expensive legal application which could have
r
easonably
been avoided.
[21]
Writing in
Helen Roper Consulting v
Toyota Tshusho Africa
,
Case
no 1171/2010 (KZN) D Pillay J
deprecated
lack of collegiality as follows and I share her views unreservedly
:-
[15]
A disturbing feature of this case is
the Jack of collegiality on the part of the Applicant's legal
representatives
.
Collegiality
is a relationship between colleagues
.
Colleagues are people united in
a
common purpose in a professional or
work situation.
Broadly
,
it connotes a commitment to the
common purpose and working towards it
.
Narrowly
,
colleague
and collegiality refer to fellow
members of the same profession
.
Respect for the commitment to the
purpose and to fellow members welds the relationship amongst
colleagues
.
In
academic circles
collegiality
may count as one of the pillars of perfo
r
mance
.
Collegiality on the bench means
that Judges have
a
common
interest as members of judiciary to getting the Jaw right
;
and to dispensing justice
efficiently
and effectively.
This
must
also
be
the
common purpose of the legal profession as a whole
.
The common purpose must be to
resolve disputes efficiently and effectively. Interlocutory
applications that tend to seek tactical
advantages and which do not
remedy disputes substantively tend not to be effective.
"
[22]
This proceedings could have been very
well averted had Hack Stupel and Ross resorted to the resolution of
this matter on the basis
of appropriately presented
facts and not tactical proficiency. On
the facts it was very clear that the applicants have appointed Tiaan
Smuts Attorneys as their
attorneys of record for the purpose of
receiving all notices and pleadings in the matter. Even if they may
have inadvertently omitted
to file their notice of intention to
defend, collegiality required to serve a set down for default
judgment application in accordance
with the Practice Directives
.
Upon receipt of the default judgment, it
would still have not been harmful to notify the attorneys that a
default judgment had been
obtained and unless payment is received,
execution steps will be taken. None of this was done and scarce
judicial resources were
expended on a matter which would have been
"
resolved"
without a need for litigation.
[23]
The applicants having succeeded; they
are not entitled to their costs because all
indications are that they have not been
sincere in their dealings with Wesbank.
They contended that their account is up
to date and not in arrears but could not
furnish any proof of payment. It is
trite law that any party alleging payment of a
debt bears the onus to proof payment
Krishna v Pillay,
1946 AD 946.
[24]
In the premises the following orders are
made:-
1.
The application is urgent and
Applicant's non-compliance with time limits for service and filing is
condoned.
2.
Pending the finalisation of the
Applicant's application for the rescission of the default judgment
granted under
case number 7478/2020:
2.1
The enforcement of the default judgment
order is suspended with retrospective
effect.
2.2
The warrant
of del
i
very
of goods
issued
under
case no 7478/2020
is suspended with retrospective
effect.
3.
The Respondent is ordered to take all
reasonable and appropriate steps to return
NUWE 2017 JOHN DEERE CS 690 Katoen
Stripper, Engine number [....], chasis number
1NOC69SCH4065007
to
the Applicants
within
15 days
from
the date of this order
.
The
Respondent shall be liable for the costs of the expert to disassemble
and assemble it.
4.
Each party to pay its own costs
.
M.I
MANGENA
ACTING
JUDGE OF HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCE:
Counsel
for the Applicants
:
Advocate Johan Prinsloo
Counsel
for the Respondents :
Advocate
A Jacobz
Date
of hearing
: 24
February 2022
Delivery
: 03
March 2022