Transaction Capital Business Solutions (Pty) Ltd v Van Der Walt N.O. and Others (1206 & 1207/2020) [2021] ZANCHC 34 (30 July 2021)

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[2021] ZANCHC 34
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Transaction Capital Business Solutions (Pty) Ltd v Van Der Walt N.O. and Others (1206 & 1207/2020) [2021] ZANCHC 34 (30 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1206 & 1207/2020
Heard:

27/05//2021
Delivered:
30/07/2021
In
the matter between:
Case No:
1206/2020
TRANSACTION
CAPITAL BUSINESS SOLUTIONS (PTY) LTD
Applicant
And
JACOBUS
SCHALK VAN DER WALT N.O.
First Respondent
KARIN
VAN DER WALT N.O.
Second Respondent
MARTIN
DU PLESSIS N.O.
Third Respondent
1
st
to
3
rd
Respondents cited as trustees of the
Kobus
van der Walt Familie Trust (IT423/2002)
JACOBUS
SCHALK VAN DER WALT N.O.
Fourth Respondent
KARIN
VAN DER WALT N.O.
Fifth Respondent
ARNOLDUS
JACOBUS VAN DER WALT N.O.
Sixth Respondent
4
th
to
6
th
Respondents cited as trustees of the
SAVUTI
BOERDERY TRUST (IT1195/2007)
JACOBUS
SCHALK VAN DER WALT
Seventh Respondent
KARIN
VAN DER
WALT
Eighth Respondent
In
the matter
between:
Case No: 1207/2020
TRANSACTION
CAPITAL BUSINESS SOLUTIONS (PTY) LTD
Applicant
And
JACOBUS
SCHALK VAN DER WALT N.O.
First Respondent
KARIN
VAN DER WALT N.O.
Second Respondent
ARNOLDUS
JACOBUS VAN DER WALT N.O.
Third Respondent
1
st
to
3
rd
Respondents cited as trustees of the
SAVUTI BOERDERY
TRUST (IT1195/2007)
JACOBUS
SCHALK VAN DER WALT
Fourth Respondent
KARIN
VAN DER WALT
fifth Respondent
MARTIN DU PLESSIS
N.O.
4
th
to
6
th
Respondents cited as trustees of the
Kobus
van der Walt Familie Trust (IT423/2002)
Sixth Respondent
JACOBUS
SCHALK VAN DER WALT
Seventh Respondent
KARIN
VAN DER WALT
Eighth Respondent
JUDGMENT
MOSES
AJ
:
Introduction
[1]
On or about 20 July 2020 the Applicant herein launched its
application in this Court under case number
1206/2020, wherein it
seeks a monetary judgment against the Respondents as cited, both in
their capacities, respectively, as trustees
of the Kobus van der Walt
Family Trust (IT143/2002), as sureties and in their personal
capacity/ies. Herein the Applicant also seeks
an order declaring
certain properties of the Respondents executable.
[2]
In this application, the deponent to the founding affidavit, one
Hermias Cornelius Niewoudt Theron, (“Theron”),
describes the
First to Third Respondents, including the Kobus van der Walt Family
Trust, as the principal debtor, the fourth to sixth
Respondents,
including the Savuti Boerdery Trust, as the first surety, the seventh
Respondent, as the second surety, and the Eighth
Respondent as the
third surety.
[3]
It is common cause on the papers filed of record, that on or about 12
August 2019 the Applicant and the
Respondents as above stated entered
into a revolving credit agreement, in terms of which the Applicant
lent and advanced to the Principal
Debtor the amount of R3,9 million
in terms of a revolving credit facility. In addition, the Principal
Debtor caused a covering bond
to be registered over its immovable
property, namely sections 53 and 54, Hartenbos, Mossel Bay,  Western
Cape as security for
its indebtedness to the Applicant in the amount
of R5 million and an additional sum of R1,25 million. The other
respondents signed
as sureties for their indebtedness.
[4]
It is common cause on the papers that on or about 27 June 2019 the
same Applicant also concluded with
the same Respondents another but
similar written revolving credit agreement with identical terms, to
which I return hereunder. This
time however, the Applicant lent and
advanced to the first to third Respondents, including the Savuti
Boerdery Trust, referred to
by the same deponent, Theron as the
Principal Debtor, the amount of R1,7 million on a revolving credit
facility. The fourth to sixth
Respondents (the Kobus van der Walt
Familie Trust), referred to as the first surety, the seventh
Respondent, referred to as the second
surety, and the eighth
Respondent, referred to as the third surety, all signed as sureties
for the indebtedness of the principal
debtor. The agreement is
subject to surety guarantees being signed by the above stated
sureties, and subject to a covering bond being
registered over the
first surety’s immovable property, namely Erf 2851, Kimberley, also
known as 45 Long Street, Albertynshof,
Northern Cape, for a covering
amount of R2,1 million to serve as security for its indebtedness,
together with the sum of R525,000.00
which security guarantees were
signed, and the said covering bond registered.
[5]
This claim forms the subject matter of the other application launched
by the Applicant against the said
Respondents, on or about 23 July
2020, out of this Court under case number 1207/2020 (the second
application).
[6]
Since the parties to both these applications were the same and the
subject matter thereof being substantially
similar, the two (2)
applications were heard and argued together in this court on 27 May
2021. After having heard counsel of both
the Applicant and the
Respondents, judgment was reserved in respect of both applications,
pending finalisation of this written judgment.
[7]
I interpose briefly to point out that before the hearing date, on 16
April 2021, on which date the matter
was postponed for hearing to 27
May 2021, I addressed a letter to the parties’ legal
representatives, dated 14 April 2021, along
the following lines,
inter alia
:
“
9.
Lastly, given the reference to, and hence the common cause existence
of the
Covid 19 pandemic and national lockdown in the Republic of
South Africa, with effect from 27 March 2020, the day on which the
Applicant
issued its first letter of demand to the Respondent,
do/would the parties consider this to be akin to “Force Majeure”
or “an
act of God” rendering it impossible for many people, in
certain circumstances to perform in accordance with their
obligations,
contractually and/or otherwise?
10.
The Applicant refers to this aspect (Covid-19 pandemic) in paragraph
22 of the
founding papers, the respondents, refer to it, inter alia,
in paragraph 13, 14, 15, 16, 17, 18, 29 – 32 of their Opposing
Affidavit.
11.
Differently put, in such scenario, would it constitute a bona fide
defence and/or
an instance in which an application for summary
judgment is excluded?
12.
The parties will have to address me on these issues at the hearing of
this matter
should it proceed on Friday 16 April 2021.
”
[8]
Subsequently the parties filed and served their supplementary heads
of argument, addressing the said issue
comprehensively in their
respective heads of argument, for which I thank them, and in court
during oral submissions.
[9]
After the last adjournment, pending this written judgment, I caused
another letter to be addressed to
the respective legal
representatives of the parties, dated 3 June 2021, wherein the
parties were invited to make additional submissions,
if any,
regarding the specific question posed, which was as follows:
“
1.
Are the parties still engaged in
settlement negotiations with each other regarding both these matters
as above-mentioned? And if so,
is there a reasonable prospect of
settlement thereof?
2.
In the event of this Court being inclined to find in the Applicant’s
favour, and further be inclined to grant the Respondents a period of
time to repay their/its debts/amounts due to the Applicant,
what time
period would the parties, respectively, submit to be a reasonable
time in the circumstances of this case? It would be appreciated
if
the parties could revert before 18
th
June 2021
.”
[10]
Following the last letter to the parties, I did not get a reply by
the end of term, 18 June 2021, when my terms of
office also expired.
Subsequently, upon my re-appointment and my return to start the new
term with effect from 19 July 2021, I was
furnished with the parties’
reply, which reads as follows:
“
Consequently
we wish to advise that the parties were unable to reach a settlement
in this matter.
We
therefore request that the Honourable Judge Moses render Judgment
based on the papers filed on record as well as the oral argument
made
by the parties legal representatives on 28 May 2021”.
In
the circumstances I proceedED henceforth to complete and finalise
this judgment.
The
pleadings and issues for determination: the First Application
[11]
The Applicant’s case is based on the terms of the written revolving
credit agreement (which is/was annexed as “F1”
to the founding
papers) concluded on 12 August 2019 between it and the principal
debtor. The salient terms hereof include the following,
inter
alia
:
“
17.1
The Applicant lent and advanced the sum of R3,900,000.00 (“the
capital”) to the Principal Debtor
(vide part A).
17.2
The Principal Debtor is to pay interest on the capital at the prime
interest rate as determined
from time to time, plus 9.25 %,
calculated daily and compounded monthly in arrears (vide Part A and
clause 4).
17.3
The capital and interest are repayable upon demand (vide Part A and
clause 7).
17.4
The Principal Debtor chose 31 Carrington Road, Belgravia, Kimberley,
Northern Cape as its domicilium
citandi et executandi address (vide
clause 15.1).
17.5
The agreement is subject to surety guarantees being signed by the
First, Second and Third Sureties
and subject to a covering bond being
registered over the Principal Debtor’s immovable property (vide
Part A and clause 2).
17.6
A certificate under the hand of any director of the Applicant, whose
designation and status need
not be proved, constitutes prima facie
proof of the Principal Debtor’s indebtedness (vide clause 12).
17.7
The Principal Debtor shall pay the Applicant’s legal costs on a
scale as between attorney and
client in the event of default (vide
clause 6.1.4).
17.8
The agreement constitutes the sole record of the agreement between
the parties and supersedes any
other discussion, agreements and/or
understandings in relation to its subject matter. No addition to,
variation, novation or agreed
cancellation shall be of any force or
effect unless in writing and signed by or on behalf of the parties.
(Vide clause 18.1 – 18.2).
18.
Pursuant to the revolving credit agreement, the Principal Debtor
caused a covering
bond to be registered over its immovable property.
A copy of the covering bond is enclosed as
Annexure
“F2”
(“the covering
bond”).
19.
In order to avoid this application being unnecessarily prolix I ask
that the terms
set out in the covering bond be deemed repeated
herein. I paraphrase only those provisions which I deem to be most
relevant to this
application:
19.1
Sections 53 and 54 situated in the sectional title scheme known as De
Branders, Paardekraal Road, Hartenbos,
as more comprehensively
described in the covering bond (“the immovable properties”),
shall serve as security for its indebtedness
vis-à-vis the Applicant
for the covering amount of R5,000,000.00 and an additional sum of
R1,250,000.00.
19.2
The nature and amount of the Principal Debtor’s indebtedness
towards the Applicant may be determined and
proved by a certificate
signed by the Applicant’s director which shall constitute prima
facie proof of the indebtedness.
19.3
The Principal Debtor shall be liable for the Applicant’s costs on a
scale as between attorney and client
in the event of enforcement of
the security.
20.
All the suspensive conditions were met, and the revolving credit
agreement became
operative, whereupon the Applicant complied with all
its terms, including by making payment to the Principal Debtor of the
capital
sum.
21.
On 27 March 2020 the Applicant addressed a letter to the Principal
Debtor in terms
of which it demanded that the outstanding amount in
terms of the credit agreement be repaid within 30 days. A copy of the
letter
is enclosed as
Annexure
“F3”
.
22.
On 15 April 2020, 29 April 2020 and 17 June 2020 the Applicant
addressed similarly
worded letters to the Principal Debtor. These
letters indicated that, in view of the Covid-19 pandemic and the
subsequent lockdown
regulations, the Applicant afforded the Principal
Debtor with an option to extend the time period to repay the debt,
alternatively
to convert the debt to a fixed term loan facility over
a maximum of 24 months, subject to vetting. The options were provided
ex gratia
and without derogating from the Applicant’s rights.
Copies of which are enclosed as
Annexure
“F4”
, “
F5”
and “
F6”
respectively.
23.
The Principal Debtor did not accept the Applicant’s proposed
options, nor did
it make payment of the claimed amount, which remains
in default.
24.
A final demand was addressed by the Applicant’s attorneys on 15 May
2020, a
copy of which is enclosed as
Annexure
“F7”
. This demand was also
not met.
25.
As at 16 July 2020 the Principal Debtor was indebted to the Applicant
in the amount
of R3 884 297.31, which is due and payable,
as is envisaged by a certificate of balance signed by one of its
directors,
enclosed as
Annexure
“F8”
.
Claim
against the sureties
26.
On 12 August 2019, and in conjunction with the revolving credit
agreement, the
First, Second and Third Sureties each signed a written
surety agreement. The respective surety guarantees are enclosed as
Annexure “F9”
,
“
F10”
and “
F11”
respectively.
27.
The terms of the respective surety guarantees mimic each other save
for the description
of the surety. In order to avoid this application
being unnecessarily prolix I ask that the terms set out in the surety
guarantees
be deemed repeated herein. I paraphrase only those
provisions which I deem to be most relevant to this application:
27.1
The Sureties irrevocably and unconditionally guaranteed, jointly and
severally, as principal and independent
obligations in favour of the
Applicant to perform any obligations due for performance by or to pay
any amount owing by the Principal
Debtor (vide clause 1).
27.2
The Sureties acknowledged that their obligations are principal
obligations and they renounced all benefits
of excursion, division
and cession of action and the benefits of “no value received”,
“non numeratae pecuniae”, “non causa
debiti” and “errore
calculi” (vide clause 9).
27.3
A certificate under the hand of any director of the Applicant, whose
designation and status need not
be proved, shall constitute prima
facie proof of the Sureties’ indebtedness (vide clause 10).
27.4
The surety guarantee constitutes the sole record of the agreement
between the parties and supersedes
any other discussion, agreement
and/or understandings in relation to its subject matter (vide clause
15).
27.5
The Sureties shall pay the Applicant’s legal costs on a scale as
between attorney and own client pursuant
to the Applicant having to
enforce its rights (vide clause 20).
28.
As at 16 July 2020 the Sureties were indebted to the Applicant in the
amount of
R3 884 297.31, which is due and payable, as is
evidenced by certificates of balance signed by one of its directors,
enclosed
as
Annexure “F12”
,
“
F13”
and
“
F14”
respectively.
29.
The Sureties remain in default of payment, in spite of demand
[1]
.
”
Relevant
factors: Declaring the immovable property executable
[12]
The Applicant’s case in respect of declaring the immovable
property(ies) of the Principal Debtor executable, appears
to be the
following, in summary:
“
30.
The Principal Debtor, a trust, is the owner of the immovable
property. As a juristic
person, the immovable properties cannot serve
as the Principal Debtor’s primary residence. I am advised that
Uniform Rule 46A(2)(a)
is therefore not applicable.
31.
I shall, ex abundanti cautela, nonetheless deal with the factors
favouring execution
against the immovable property. This should
however not be construed as a concession that Uniform Rule 46A(2)(a)
is applicable.
32.
It would seem that the immovable properties, albeit residential,
serve as a holiday
home of sort. It is not clear who benefits from
its use.
33.
The fact that the Principal Debtor had to incur debt in the amount of
R3.9 million,
as recently as August 2019, is indicative that it does
not have sufficient liquidity.  In addition to the current debt,
the
Principal Debtor also signed as surety in respect of another
credit facility provided by the Applicant in the amount of R1.7
million.
This facility has also been called up and parallel
proceedings will be instituted against it. It is therefore highly
unlikely that
the Principal Debtor will have sufficient movables to
satisfy the Applicant’s claim.
34.
To execute against movables first will not only be futile, but will
simply serve
to run up avoidable costs. In the meantime, interest
will accrue even further. As it stands, interest on the outstanding
amount accrues
at more than R53,000.00 per month. If execution of the
immovables is stayed for several month (if not longer), as it
invariably will
be if one first executes against the movables, then
the Principal Debtor’s indebtedness will increase exponentially.
This
will not only be to the Principal Debtor’s detriment, but also
to the detriment of the Sureties.
35.
As for the First Surety: It too has concluded a similar revolving
credit agreement
with the Applicant, which has since also been called
up.  Parallel proceedings will be issued against it in
conjunction with
this application. An attempt to first execute
against its movables will likely result in the same outcome for the
same reason why
execution against the Principal Debtor will be
futile, viz it too will have insufficient liquidity or movables to
satisfy the claim.
36.
As for the Second and Third Sureties: They have been cited in their
personal capacities.
While it is fair to assume that they own
some movables, it is unlikely to be sufficient to satisfy the entire
claim.  They too
are sureties in respect of the proceedings
mentioned earlier.
37.
I further respectfully submit that it is not within the spirit of the
Constitution
to first execute against a natural person’s effects
when immovable property of a juristic person is available for
execution. I
point out that it is highly unlikely that the immovable
properties (which are in any event not owned by them) serve as the
Second
and Third Sureties’ primary residence.  The immovable
properties are situated near Mossel Bay, while the Second and Third
Sureties reside in Kimberley.  They in fact own various other
immovable properties, as is evidenced by reports enclosed herewith,
marked
Annexure “F15”
and
“
F16”
respectively.
38.
The Second and Third Sureties’ right to housing will therefore not
be affected
if this application is granted. It is further evidenced
from the aforesaid reports that the Second and Third Sureties hold
stakes
in various commercial enterprises.
39.
Considering the Respondents’ circumstances holistically, it is
clear that one
is not dealing with typical indigent people, but
rather with a family who is familiar with commercial enterprise.
FACTORS
LISTED IN RULE 46A(5)
40.
The Applicant has caused the immovable properties to be appraised by
a qualified
property valuer. Her report is enclosed as
Annexure
“F17”
.
41.
From the report the court will note that the immovable properties
(which have
been combined to form one residential unit) are valued at
about R6,600,000.00 (open market value) and R4,950,000.00 (forced
sale
value).
42.
The Applicant’s attorneys have also obtained electronically
generated valuation
reports (Lightstone Scheme Valuation Service),
printouts of which are enclosed as
Annexure
“F18”
and “
F19”
.
43.
From these reports, the court will note that the immovable properties
are valued
(combined) as follows:
43.1
Expected low market value:
R4,350,000.00
43.2
Expected high market value:
R5,260,000.00
43.3
Municipal valuation (as at 2016):  R3,399,000.00
[2]
”
[13]   It
is the Applicant’s contention that in as much as the owner of the
immovable properties is a juristic person
– the Trust – and not a
natural person, and furthermore that the listed properties seem to be
holiday homes and not the primary
residence of any of the
Respondents, neither section 26(1), section 26(3) nor the provisions
of Rule 46A of the Rules of Court are
applicable to the property
and/or an order declaring the said property executable. The Applicant
has, however, referred to these
sections and the two provisions of
Rule 46A, and without conceding its applicability, pointed out the
Respondents’ rights and obligations
flowing from these provisions,
should it/they be opposed to such order declaring the said immovable
property executable.
[14]
It is also the Applicant’s case that:
51.
by virtue of the fact that the principal debt arose from what is
deemed to be a “large agreement” and the Principal Debtor
is a
“juristic person” as defined by the National Credit Act 34 of
2005 (“the NCA”), the provisions of the NCA are not applicable
to
this matter.
[3]
”
This
was not disputed by and/or on behalf of the Respondents.
[15]
In the circumstances, the Applicant has cancelled the said agreement,
called up the loan amount, and pray for an
order in terms of the
Notice of Motion, which reads as follows:
“
1.
That judgment be granted against the First to Eighth Respondents,
jointly
and severally, the one paying the others to be absolved, in
the following terms:
1.1
Payment of
R3,804,805.00
.
1.2
Interest on the aforesaid amount
calculated at the prime rate of interest determined from time to
time, plus 9.5 % per annum, calculated
daily and compounded monthly
in arrears on a 365 day year, from 30 June 2020 to date of final
payment.
1.3
Costs of suit on a scale as between
attorney and client.
2.
That the following immovable properties be declared specifically
executable:
2.1
The Unit, held by Deed of Transfer Number ST20172/2007, consisting
of:
2.1.1
Section number 53 as shown and more fully described on Sectional Plan
No SS 83/2000 in the scheme known as
De Branders, in respect of the
land and building or buildings situated at Hartenbos, in the
Municipality of Mossel Bay, of which
section the floor area,
according to the said sectional plan is 103 square metres in extent;
and
2.1.2
An undivided share in the common property in the aforesaid scheme
apportioned to the said section in accordance
with the participation
quota as endorsed on the said sectional plan.
2.2
The Unit, held by Deed of Transfer Number ST30214/2005, consisting
of:
2.2.1
Section number 54 as shown and more fully described on Sectional Plan
No SS 83/2000 in the scheme known as
De Branders, in respect of the
land and building or buildings situated at Hartenbos, in the
Municipality of Mossel Bay, of which
section the floor area,
according to the said sectional plan is 99 square metres in extent;
and
2.2.2
An undivided share in the common property in the aforesaid scheme
apportioned to the said section in accordance
with the participation
quota as endorsed on the said sectional plan.
hereinafter
“the immovable properties”
3.
That no reserve price be set in the event of the immovable properties
being sold in execution, alternatively that a reserve price be set in
the amount as the court may deem reasonable.
4.
Further and/or alternative relief”.
[4]
A
summary of the Respondents’ Grounds of Opposition
[15]
According to the Respondents, in their opposing papers, the opposing
affidavit whereof was deposed to by Jacobus
Schalk van der Walt (“Van
der Walt”), they obliged with the material express terms of the
revolving credit facility agreement
concluded between the Applicant
and the Kobus van der Walt Familie Trust (“the Trust”), which
terms included,
inter alia
,
the following:
“
6.1
Applicant would lend and advance credit to the Trust in the amount of
Three Million
Nine Hundred Thousand Rand (
R3 900 000.00
);
6.2
In accordance with clause 7 of the Standard Terms and Conditions of
the agreement,
the monies would be repaid in accordance with Part A
of the agreement which set a monthly repayment instalment of
Sixty-Four Thousand
Rand (
R64 000.00
);
6.3
The agreement was subject to certain suspensive conditions, which
were to be concluded
by no later than 31 December 2019. The
suspensive conditions were:
6.3.1
First Respondent was to sign as surety in his personal capacity on
the Trust’s behalf,
6.3.2
Second Respondent was to sign as surety in her personal capacity on
the Trust’s behalf;
6.3.3
The Savuti Boerdery Trust was to sign as surety on the Trust’s
behalf;
6.3.4
A first covering bond in the amount of Five Million Rand
(
R5 000 000.00
)
in Applicant’s favour over the immovable property known as 53 and
54 Sectional Title Units in De Branders, Paardekraal Road, Hartenbos;
6.3.5
There was to be a cession of the requisite property insurance over
the subject properties
;
7.
Respondent complied with all suspensive conditions and the amount of
R3 900 000.00
was
accordingly advanced to the Trust.
8.
The Trust abided by the repayment schedule and paid the monthly
instalment
to Applicant.
[5]
”
[16]
The Respondents then also referred to the Covid-19 pandemic and its
impact on the citizens of this country. In this
regard, they made the
following submissions:
“
9.
By virtue of the Covid-19 virus and in order to limit the spread
thereof,
the Government of the Republic of South Africa placed the
country under a stringent lockdown with severe economic implications
of
the citizens of the country, which has caused substantial fiscal
hardship for millions of South Africans.
10.
The effect of this lockdown resulted in all forms of commerce, save
for extremely
limited designated services, being prohibited.
Resultantly, an unprecedented level of economic strife has ensued and
millions of
South African losing their employment and livelihood.
11.
Apart from economic assistance from government, and various acts of
philanthropy
on part of captains of industry and certain sectors of
commerce, the so-described “Top Five” banking institutions, as
well as
other banking institutions, provided various measures to
assist its clients in alleviating the increased financial burden/s
they
would encounter by virtue of the lockdown.
12.
This assistance included “payment holidays”, whereby clients
would be given
a period of approximately three months grace on
repaying the monthly instalments on, inter alia, the loans and
overdrafts they have
with the designated banks.
13.
The President of the Republic of South Africa likewise emphasised
that the unprecedented
period required all to act in accordance with
a spirit of cooperation and magnanimity, including inter alia,
commercial and residential
landlords and financial institutions, so
as to prevent the incurrence of any further emotional and financial
hardship.
14.
Notwithstanding the above, Applicant did precisely the opposite to
other financial
institutions, and caused a letter to be sent to all
and/or most of its clients, dated 27 March 2020, being the day the
lockdown in
South Africa commenced.
15.
In accordance with this letter, Applicant advised that the Trust
should deem the
letter to be a demand, in that, it reads:
‘
It
is a material and essential term
of the Facility Agreement that we (Applicant) shall be entitled, at
our sole and absolute discretion, to demand repayment of any
and all
amounts due in terms of the Facility Agreement on demand.’
(emphasis in the original)
16.
The letter further advised, inter alia, that the Trust was to repay
to Applicant
the outstanding amount of One Million Six Hundred and
Seventy-Eight Thousand Nine Hundred and Seven Rand and Ninety Five
Cents (
R1 678 907,95
)
within Thirty
(30)
days
from receipt of the letter.
17.
The manner in which Part A of the agreement is expressed, would allow
any reasonable
contracting party to presume that the money would be
repaid in entirety until such time that they(sic) monthly instalment
repayments
extinguished the debt.
18.
In the event the Honourable Court were to find that Applicant was
entitled to
rely on the demand, it is settled that a degree of
reasonableness must be exercised when a right of this nature is
implemented.
19.
In light of the unprecedented position the country and its citizens
found themselves
in, it is incontrovertible that Applicant exercised
its demand unreasonably and capriciously.
…
28.
Of importance in the present matter is the fact that the agreement in
question
was concluded in June 2019 and the notice of cancellation
was provided in March 2020.
29.
Accordingly, in the light of the substantial amount advanced to the
Trust, and
the fact that the demand was made less than a year after
the conclusion of the contract, coupled with the unprecedented
lockdown,
a circumstance which cannot have been foreseen by the
parties at the time the agreement was concluded, the cancellation
cannot be
seen as reasonable.
[6]
”
[17]
With regard to the surety agreements signed by the Respondents, they
disputed their liability on the following grounds:
“
34.
Respondents deny that they had the intent to bind themselves insofar
as the renunciations
of the suretyship agreements are concerned.
35.
At the time of entering into the surety agreements, they were unaware
and/or failed
to completely understand the far-reaching consequences
of this agreement and the ramifications for not adhering to its
terms.
36.
What is more, Respondents were never appraised of or advised as to
the meaning
of the terms as contained in paragraph 9 of the
agreement, and only signed the agreement as a matter of course.
37.
The true meaning of the renunciations were only made aware to
Respondents after
having consulted with their legal representatives.
Unbeknownst to them, they renounced any and all forms of benefit or
protection
afforded to them and were not appraised of this when
entering into the suretyship agreement.
38.
Respondents would not have signed the suretyship agreement with the
inclusion
of paragraph 9, had they understood the meaning thereof.
39.
Moreover, the language and terminology utilized in the suretyship
agreement would
be difficult for an English speaker to comprehend let
alone someone who is Afrikaans speaking, as Respondents are.
40.
In light of the above, consensus could not have been reached between
the Applicant
and Respondents, as they did not have the animus
contrahendi to enter into agreements of this nature.
41.
Moreover, the basis of Respondents’ opposition in this respect is
factual in
nature. Given the fact that Applicant seeks final relief
in these proceedings, the applicable legal principles germane thereto
apply.
Consequently, there is a material factual dispute
manifest herein which goes to the epicenter of the dispute.
...
50.
As aforementioned, the version advanced by Respondents in relation to
the suretyship
agreements is by no means “far-fetched” or
“clearly untenable” to warrant their immediate rejection.
51.
Accordingly, a material factual dispute is manifest in the parties’
versions
which cannot be resolved on the affidavits alone.
[7]
”
[18]
In the circumstances the Respondents’ opposition to the relief
claimed can be summarised as follows:
“
3.1
Applicant’s cancellation of the agreements in question is in the
circumstances unreasonable;
3.2
The renunciations contained in the suretyship agreements should be
struck pro
non scripto therefrom, as the sureties did not understand
the ramifications of these renunciations; and
3.3
Insofar as that stated in paragraph 3.2 is concerned, there would in
any event
be a material factual dispute in this respect, and the
application procedure would accordingly be the incorrect process to
resolve
a dispute of this nature
[8]
.
”
[19]
As pointed out above (in paragraph 4) the Second Application is
substantially similar to the First Application, except
for the date
this agreement was concluded, namely 27 June 2019, the amount
advanced and lent by the same Applicant to the same Respondents,
on a
revolving credit facility namely R1,7 million rand, and the immovable
property of the Kobus van der Walt Familie Trust – the
First Surety
– being Erf 2851, Kimberley, also known as 45 Long Street,
Albertynshof, Kimberley, Northern Cape, over which a covering
bond in
the amount of R2,1 million had to be registered as security for the
Respondents’ indebtedness to the Applicant. Hence the
verbatim
quotations in extenso.
[20]
In the result the Applicant’s grounds advanced in support of its
claims against the Respondents in the second application
are
identical to those advanced in respect of the First Application, and
the Respondents’ grounds of opposition also a mirror image
of those
advanced in respect of the First Application.  The Applicant’s
prayers are also similar to its prayers set out in
respect of the
First Application, save for those differences referred to in
paragraph 19 above and, which are reflected in its prayers
in the
Second Application.  That being so, I deal with both
applications based on these similar facts and the submissions made
and advanced on behalf of the parties herein.
The
common cause facts
[21].
It is common cause that the Applicant lent and advanced R3.9 million
to the First to Third
Respondents, in their representative capacities
as trustees of the Kobus van der Walt Familie Trust (“the Principal
Debtor”),
(Case 1206/2020) and R1,7 million to the First to Third
Respondents in their representative capacities as trustees of the
Savuti
Boerdery Trust (“the Principal Debtor”) (Case 1207/2020),
at an agreed interest rate of prime plus 9.25 % in terms of a
revolving
credit facility agreement (“the agreement”). In
addition, the Principal Debtor caused a covering bond to be
registered over its
respective immovable property/ies, as security
for the respective loans.
[22]
It is further common cause that the other Respondents signed as
sureties for the said
indebtedness.
[23]
The Respondents failed to repay the monies, in spite of several
demands, to date hereof.
[24]
The Applicant thereupon launched these applications for repayment of
the capital and
interest, and to have the respective Principal
Debtor’s immovable property/ies declared executable
[9]
.”
[25]
The Respondents mainly rely on two alternative defences. They are:
5.1
that the Respondents did not breach the agreement and that the
Applicant therefore do not
have unilateral right to call up the loan;
5.2
alternatively, if the Applicant did have a unilateral right to call
up the loan, that it had
to be preceded by a reasonable demand
[10]
.
[26]
These constitute the main issues for determination regarding both
applications. I deal with these in turn hereunder.
The
Respondents’ objections to the Applicant’s unilateral right to
demand payment:
[27]
It was conceded, correctly, that the founding papers do not
rely on a breach on the part of the Respondents. It was however
pointed out in the replying papers that the Respondents were in fact
in default from March 2020 onwards and that this serves as an
additional, independent basis for the termination of the agreement.
The founding papers are instead premised on clause 7.1 of the
agreement, which reads that:
“
7.1
The outstanding amount must be repaid in full on or before the expiry
of the facility terms as set out
in Part A of the loan schedule”.
[28]
The facility term component of Part A in turn reads: “Fluctuating –
repayable on demand.”
[29]
The Respondents interpreted Part A to mean that it would allow any
reasonable contracting party to presume that the money
would be
repaid in entirety until such time that the monthly instalment
repayments extinguished the debt.
[30]
The Respondents further interpreted this to mean that, as no date of
repayment had been specified, the Applicant does not
have a
unilateral right to demand payment.
[31]
This
Court was referred to the case of
Panama
Prop 103 (Pty) Ltd v Land & Agricultural Dev Bank of SA
2016 (1)
SA 202
(SCA)
in which the SCA emphasised that there is a presumption against
superfluity when interpreting contracts. (para 35) This follows the
traditional approach, as explained by
Christie
[11]
:
‘
It
is … a good general rule in jurisprudence that one who reads a
legal document, whether public or private, should not be prompt
to
ascribe – should not without necessity or some sound reason impute
– to its language tautology or superfluity, and should
rather at
the outset inclined to suppose every word intended to have some
effect or be of some use
.
[32]
The Applicant submitted that the Respondents’ interpretation also
disregards the modern locus classicus on interpretation,
viz
Natal
Joint Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
[12]
:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into
existence.
Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar
and syntax; the
context in which the provision appears; the apparent purpose to which
it is directed
and the material
known to those responsible for its production. Where more than one
meaning is possible each possibility must be
weighed in the light of
all these factors.  The process is objective not subjective. A
sensible meaning is to be preferred to
one that leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to,
and guard against, the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually used.
To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual
context it is to
make a contract for the parties other than the one they in fact made.
The ‘inevitable point of
departure is the language of the provision itself
’
,
read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document
”.
[33]  This
Court agrees with the submissions on behalf of the Applicant that the
difficulty with the Respondents’ interpretation
is that it will
necessarily result in the court having to ignore an express provision
of the agreement, viz the words “repayable
on demand” and thereby
contravene the trite principles of interpretation, as referred to and
set out above.
The
Respondents’ demand for reasonableness/reasonable notice
[34]
The Respondents’ alternative contentions are (a) that the demand
had to be reasonable and (b) that the Applicant’s demand
was indeed
unreasonable in the circumstances.
[35]
The difficulty with the former contention is that it requires the
reading into the agreement a word that simply does not
appear
therein, namely “reasonable.” In so doing, it is expected of the
court to ignore the agreement’s sole memorial and non-variation
clauses, which, based on the above-stated legal principles, and which
apply, mutatis mutandis, herein, this Court cannot do.
[36]
The Respondents’ position is not helped by the common law either.
[37]
In
Damont
NO v Van Zyl
1962 (4) SA 47
(C)
it was held that: ‘
In
law it is clear that when no time is specified it is liable to become
payable from the moment when it is advanced
[13]
’.
[38]
It was held in
Trinity
Asset Management (Pty) Ltd v Grindstone Inv 132 (Pty) Ltd
2018 (1) SA
94
(CC)
that: ‘…
the
long-standing common-law rule that a loan without stipulation as to a
time for repayment is ‘repayable on demand
’.
But what does ‘repayable on demand’ mean? The court said that
‘although by no means linguistically clear’, the phrase
means
that ‘no specific demand for repayment is necessary and
the
debt is repayable as soon as it is incurred
’.
The
practical effect is this. When suing for repayment the creditor
doesn’t need to allege a demand: demand is not part of the
plaintiff’s
cause of action
.
After considering English, Canadian, Australian and New Zealand law,
the court held that,
unless
the parties agree otherwise, a loan ‘repayable on demand’ is
repayable from the moment the advance is made and that no
specific
demand for repayment need be made for the loan to be immediately due
and repayable
[14]
.”
[39]
In
Beadica
231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247
(CC)
[15]
it was held that: ‘…
a
court may not refuse to enforce contractual terms on the basis that
the enforcement would, in its subjective view, be unfair,
unreasonable
or unduly harsh
.
These abstract values have not been accorded autonomous,
self-standing status as contractual requirements. Their application
is
mediated through the rules of contract law including the rule that
a court may not enforce contractual terms where the term or its
enforcement would be contrary to public policy.
It
is only where a contractual term, or its enforcement, is so unfair,
unreasonable or unjust that it is contrary to public policy
that a
court may refuse to enforce i
[16]
t
”.
[40]
In
Endumeni
Municipality
[17]
it was held that: “
Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike
for the
words actually used
[18]
”.
[41]
It was furthermore submitted on behalf of the Applicant, that insofar
as the Respondents seek to rely on the so-called factual
matrix of
the agreement, it is notable that they have provided the court with
no factual matrix which can possibly sway it from the
literal
interpretation of the agreement. The Respondents largely relied on
generic allegations pertaining to the Covid-19 lockdown
and how other
financial institutions have treated their clients in this period. It
was submitted that these allegations, even if
one assumes them to be
accurate, have no bearing on how one is to interpret the agreement.
The Respondents, it was argued,
have, for instance, provided no
details as to what they say transpired during the negotiations and/or
details regarding the parties’
subsequent conduct from which one
can infer that the parties intended for the word ‘reasonable’
demand to be incorporated in
the agreement.
[42] It was also
submitted on behalf of the Applicant that the Respondents’ reliance
on the Code of Conduct promulgated in terms
of the
Financial Advisory
and Intermediary Services Act 37 of 2002
is, misplaced. The Act
applies to financial service providers, who are defined as:
“
financial
services provider’ means any person, other than a representative,
who as a regular feature of the business of such person
–
(a)
furnishes advice; or
(b)
furnishes advice and renders any
intermediary service; or
(c)
renders
an intermediary service;”
[19]
[43]
The Applicant, it was submitted, is a financial institution.
This should not be confused with financial services providers,
who
are typically brokers and intermediaries.  There is no authority
to suggest that financial institutions are bound by the
Financial
Advisory and Intermediary Services Act 37 of 2002
, as is suggested by
the Respondents
[20]
.” The
Respondents did not pursue this ground as part of their defences
during oral submissions in Court.
[44]
The Respondents and counsel on their behalf also did not pursue their
allegations of the existence of a factual dispute during
oral
argument, correctly so
[21]
. In
the circumstances and for purpose’s of this judgment it is not
necessary for this Court to deal with that aspect.
[45]
In the result, based on the facts and circumstances of this case and
the clear crystalized legal principles set out
above, which militate
against the contentions advanced on behalf of the Respondents, I must
find against the Respondents and in favour
of the Applicant in
respect of the first and second applications. I find accordingly.
The
impossibility of performance:
Vis
Major / Force Majeure
[46]
This was an issue raised by this Court subsequent to the parties
having served and filed their respective Heads of
Argument and to
which I have referred to herein above. The issue was raised because
both the Applicant and Respondents have referred
to the Covid-19
pandemic in their respective papers in both applications. It was
therefore considered prudent to afford the parties
an opportunity to
address this aspect in more detail, which they did by their
respective supplementary Heads of Argument, which were
very helpful
and for which I similarly express my appreciation herewith.
[47]
The Applicant’s case, in this regard, is quite simple:
“
5.
Nowhere in the Respondents’ papers did they allege that performance
was
impossible, nor did they rely on force majeure or vis major.
Instead, the Respondents’ defence is rather premised on an
interpretational
argument that one is to read the word ‘reasonable
demand’ into the agreement.  It is submitted that the two
defences are
not to be equated with each other
[22]
.
”
[48]
This Court was referred to the approach to be adopted by a court
raising an issue(s) mero motu, as authoritatively
set out by the
Supreme Court of Appeal in
Fischer
v Ramahlele
[23]
as follows:
“
[13]
Turning then to the nature of civil litigation in our adversarial
system, it
is for the parties, either in the pleadings or affidavits
(which serve the function of both pleadings and evidence), to set out
and
define the nature of their dispute, and it is for the court to
adjudicate upon those issues. That is so even where the dispute
involves
an issue pertaining to the basic human rights guaranteed by
our Constitution, for ‘(i)t is impermissible for a party to rely on
a constitutional complaint that was not pleaded’. There are cases
where the parties may expand those issues by the way in which
they
conduct the proceedings. There may also be instances where the court
mero motu raise a question of law that emerges full from
the evidence
and is necessary for the decision of the case. That is subject to the
proviso that no prejudice will be caused to any
party by its being
decided. Beyond that it is for the parties to identify the dispute
and for the court to determine that dispute
and that dispute alone.
[14]
It is not for the court to raise new issues not traversed in the
pleadings
or affidavits, however interesting or important they may
seem to it, and to insist that the parties deal with them. The
parties may
have their own reasons for not raising those issues. A
court may sometimes suggest a line of argument or an approach to a
case that
has not previously occurred to the parties. However, it is
then for the parties to determine whether they wish to adopt the new
point.
They may choose not to do so because of its implications for
the further conduct of the proceedings, such as an adjournment or the
need to amend pleadings or call additional evidence.  They may
feel that their case is sufficiently strong as it stands to require
no supplementation.  They may simply wish the issues already
identified to be determined because they are relevant to future
matters and the relationship between the parties. That is for them to
decide and not the court. If they wish to stand by the issues
they
have formulated, the court may not raise new ones or compel them to
deal with matters other than those they have formulated
in the
pleadings or affidavits.
”
[49]
Accordingly, so it was submitted, the court should adjudicate
the application on the       papers,
as
they stand, and that the issue of impossibility of performance is not
one of those issues
[24]
.”
[50]
It was also argued by Mr Steenkamp, on behalf of the Applicant, in
the alternative, and should the Court have regard
to the Covid-19
pandemic as a relevant factor in the context of the defence of
impossibility of performance, that in the event, the
Respondent only
made generic statements and generalisations about the impact of
Covid, without stating anywhere in their/its papers
specifically how
they were affected by it, and in which way, and to what extent, if
any, the Covid-19 pandemic made it impossible
for them, the
Respondents, at the time, to date hereof, to comply with their
obligations in terms of the respective contracts, to
make payment,
which became due and payable to the Applicant.
[51]
Mr van Tonder, who appeared on behalf of the Respondents in both
applications, and who was briefed subsequently as
counsel on their
behalf, was constrained to concede that no specific allegations of
impossibility of performance due to the Covid-19
pandemic was pleaded
by and/or on behalf of the Respondents.  He argued however, that
given the reference to Covid-19 in the
respective papers of the
Respondents and the Applicant, this court was justified to raise the
issue to be dealt with by the parties
before court.
[52]   He
furthermore referred this court to paragraph 29 of the Respondents’
Heads of Argument already filed where reference
was made of the fact
as follows:
“
Accordingly,
in light of the substantial amount advanced to the Trust, and the
fact that the demand was made less than a year after
the conclusion
of the contract, coupled with the unprecedented lockdown, a
circumstance which cannot have been foreseen by the parties
at the
time the agreement was concluded, the cancellation cannot be seen as
reasonable
[25]
.
”
[53]
The Respondents’ case, he submitted, is/was not one of absolute
impossibility, and therefore the final and complete
extinguishing of
their obligations in respect of, and towards, the Applicant. It was
rather one of temporary impossibility of performance,
in the light of
the Covid-10 pandemic. With reference to the case of
Niemand
v Okapi Investments (Edms) Bpk
[26]
he
submitted, in the circumstances, that for the period during which the
impossibility continues, the debtor’s obligation is not
extinguished, but merely suspended as the law does not compel the
impossible.
[54]   He
accordingly submitted that:
“
15.
It is submitted that not only was the Applicant’s conduct and
manner in which it demanded
payment, on the very day of the start of
the Lockdown, as well as shortly thereafter, utterly unreasonable in
the circumstances,
but also not in accordance with the terms of the
agreements between the parties.
16.
It is furthermore submitted that these demands were made while, in
view of the
extraordinary circumstances in existence since the 27
th
of March 2020, and even to date hereof, it is impossible for the
Respondents to comply with these unreasonable demands, under
circumstances
where the Respondents’ performance have become
temporarily impossible, wherefore their obligations are temporarily
suspended
[27]
.
”
[55]
Mr van Tonder’s submissions could not, and did not, however,
overcome two insurmountable hurdles; firstly the Respondents’
omission to have pleaded this defence of impossibility due to the
Covid-19 pandemic and its effect on them specifically; and, secondly,
as pointed out by the Applicant, in spite of the Court’s query
having been raised more than a month earlier, no attempts have been
made by the Respondents to  supplement and/or amplify their
papers so as to rely on this defence.
[56]
In the circumstances, I must find, as I do, that no facts and/or
circumstances have been placed before this court
to justify a finding
that due to the Covid-19 pandemic, the Respondents have been rendered
absolutely, partially and/or temporarily
impossible to perform their
obligations in terms of the agreements, towards the Applicant.
[57]
I now turn briefly to the Applicant’s allegations and prayers in
respect of the Respondents’ immovable properties,
and for this
court to declare same specially executable in the circumstances,
there being compliance with the provisions of Uniform
Rule 46A(2)(a).
[58]
It is the Applicant’s case that the immovable properties
in
casu
,
besides being owned by a juristic person(s), namely the two (2)
Trusts, these properties did/do not serve as the Respondents’
primary residence(s).  Hence the application of Rule 46A(2)(a)
is not triggered.
[59]
I was also referred to the case of
NPGS
Protection and Security Services CC and Another v Firstrand Bank
Ltd
[28]
wherein
it was held that
“
31.
…the onus is on the debtor to, at the very least, provide the court
with information
concerning whether the property was his or her
personal residence; whether it was a primary residence; whether there
were other means
available to discharge the debt; and whether there
was a disproportionality between the execution and other possible
means to exact
payment of the judgment debt. The Respondents in casu
provided no such information.
”
[60]
In the circumstances I must find, as I do, that the Applicant has
made out a case for this relief in respect of both
applications.
What
order should be made
[61]
What remains to be considered, in the circumstances of these cases,
is what order should be made that is legally
compliant and factually
appropriate.
[62]
It is common cause that the Applicant, in its founding papers in both
applications, did not rely on any breach of
the respective agreements
on the part of the Respondents.  It is so that in its replying
papers it sought to make out a case,
belatedly so, that the
Respondents were in fact in default as from March 2020 onwards, which
according to the Applicant, served “
..as
an additional, independent basis for the termination of the
agreement
[29]
.
”
[63]
The Applicant’s contention in this regard, to my mind, does not
hold water. Firstly, they did not make out a case
for this contention
in their founding papers, as they should have done but failed to do
so. The Applicant could in any event not
assert this allegation at
that stage because, as the Respondents have demonstrated, they have
complied with all their legal obligations
in terms of the two
agreements until and up to the date when these applications were
served on them.  Secondly, the Applicant
had elected to
forthwith cancel the agreements, despite the fact that there was no
breach on the part of the Respondents up to that
point, unilaterally
so, as was its right, as demonstrated by them.  It therefore
follows that, there being now a legal dispute
in existence, brought
about by the Applicant, not by the Respondents, with the contracts
henceforth having been cancelled by the
Applicant, that the
Respondents would, in these circumstances be inclined to stop making
any further payments, as they did, understandably
so, until this
dispute, initiated by the Applicant, is resolved. Thirdly, the
Respondents have demonstrated on the papers before
this court, that,
in the circumstances of both cases, that unilateral cancellation of
the agreements and the Applicant’s demand
for immediate payment of
the amounts lent and advanced – which are not small amounts, it
being R3,9 million and R1,7 million respectively,
which became due
and payable, was indeed, objectively, unreasonable, albeit legally
permissible and enforceable, as I have found.
[64]
This Court has canvassed its inclination to suspend the orders
declaring the respective properties specially executable,
with
counsel during argument in court, and subsequently as per the letter
addressed to the parties referred to hereinabove
[30]
.
[65]
During the said hearing and submissions in court, Mr Steenkamp, for
the Applicant, referred me to what is called
the “Roger’s Order”,
emphasising that he had no specific instructions in that regard, and
that the said order mainly applies
to situations where people, who
do/did not really have the requisite financial means, are faced with
applications to have their primary
residences declared specially
executable.  In short, the “Roger’s Order” involves,
inter
alia
, the granting of an order
declaring such immovable property executable, but suspending such
order, subject to periodic payments made
by the debtor to satisfy the
arrear instalment amount, in which event the executability of the
property will lapse or be further
suspended.
[66]   Mr
van Tonder argued for the postponement for a period of time, of the
matter, in the discretion of the Court, and
for the matter to be
heard and the parties to return to the court, at such future/later
date. He conceded that it was an unusual
request, but, he said, these
were unusual circumstances we find ourselves in.  According to
him the Applicant would not suffer
any significant prejudice, whereas
the Respondents will suffer serious prejudice in the circumstances.
[67] To summarize:
[67.1] The Applicant
was legally entitled to cancel the agreement, and to demand payment,
which became due and payable.
[67.2] such
cancellation and call up of the payment was indeed unilateral and
just after +_ 8 months since concluding the contracts.
[67.3] At that time
the Respondents did not breach any term of the agreement, they were
paying their monthly instalments timeously,
in accordance with their
obligations in terms of the contract.
[67.4] Covid- 19
played a role, objectively, by affecting all people, not only in the
world, but also in the Republic of South Africa,
although people were
affected differently. Respondents did not specify how exactly
Covid-19 affected them in not being able to comply
with their
obligations in terms of the contract.
[67.5]
In the circumstances the unilateral cancellation of the agreements
and call up of the facilities, namely payment of the R3.5
million and
R1.7 million which as a result, became due and payable, was clearly
unreasonable. Yet that is not in the circumstances
of this case, a
valid defence in law, but it is an important factor for the Court to
take into consideration in terms of the Order
which should be
issued.
[68]
After careful consideration, I have come to the conclusion that, in
the circumstances of this case, the following
order should be issued:
ORDER
1.The
Application in respect of both cases, No 1206/2020 and 1207/2020
succeeds.
2.
The
First Application: Case No 1206/2020
Judgment
is granted against the First to Eighth Respondents, jointly and
severally, the one paying the others to be absolved, in the
following
terms:
2.1
Payment of 3, 804, 805.00.
2.2
Interest on the aforesaid amount calculated
at the prime rate of interest determined from time to time, plus 9.5%
per annum, calculated
daily and compounded monthly in arrears on a
365 day year, from 30 June 2020 to date of final payment.
2.3
Cost of suit.
3.That
the following immovable properties be declared specifically
executable, which order is suspended for a period of six (6) calendar
months from date of this judgment;
3.1
The Unit, held by Deed of Transfer Number
ST20172/2007, consisting of:
3.1.1
Section number 53 as shown and more fully
described on Sectional Plan No SS 83/2000 in the scheme known as De
Branders, in  respect
of the land and building or buildings
situated at Hartenbos, in the Municipality of Mossel Bay, of which
section the floor area,
according to the said sectional plan is 103
square metres in extent, and
3.1.2
An undivided share in the common property
in the aforesaid scheme apportioned to the said section in accordance
with the participation
quota as endorsed on the said sectional plan.
3.2
The Unit, held by Deed of Transfer Number
ST30214/2005, consisting of:
3.2.1
Section number 54 as shown and more fully
described on Sectional Plan No SS 83/2000 in the scheme known as De
Branders, in  respect
of the land and building or buildings
situated at Hartenbos, in the Municipality of Mossel Bay, of which
section the floor area,
according to the said sectional plan is 99
square metres in extent, and
3.2.2
An undivided share in the common property
in the aforesaid scheme apportioned to the said section in accordance
with the participation
quota as endorsed on the said sectional plan;
Hereinafter
“the immovable properties”.
4.That
a reserve price of R4 million (R4 000 000.00) be set in the
event of the immovable properties being sold in execution.
2. The Second
Application: Case No 1207/2020
Judgment
is granted against the First to Eighth Respondents, jointly and
severally, the one paying the others to be absolved, in the
following
terms:
5.1
Payment of R1, 753, 920.76.
5.2
Interest on the aforesaid amount calculated
at the prime rate of interest determined from time to time, plus
8.25% per annum, calculated
daily and compounded monthly in arrears
on a 365 day year, from 30 June 2020 to date of final payment.
5.3
Cost of suit.
6.
That the following immovable property be declared specifically
executable, which order is suspended for a period
of six (6) calendar
months from date of this judgment;  Erf 2851, Kimberley,
situated in the Sol Plaatjie Municipality, District
of Kimberley,
Province of  the Northern Cape, in extent 892 square metres and
held by Deed of Transfer number R100/2005 (“the
immovable
property”)
7.
That a reserve price of R1.800 000.00 be
set in the event of the immovable property being sold in execution.
MOSES, AJ
ACTING
JUDGE OF THE HIGH COURT
REPRESENTATION:
Counsel for the
Applicant:

Adv. J.P. Steenkamp
Instructed
by:
Elliott,
Maris, Wilmans & Hay
Counsel for the
1
st
– 8
th
Respondents:                Adv.
A.G. van Tonder
Instructed
by:
PMGO
Attorneys
[1]
Record
p. 11 – 16, paras 17.1 to 29
[2]
Record
p
ages
16 – 19, paras 30 to 43
[3]
Record
p
age
21;, para 51
[4]
Record
p
ages
2 – 3, paras 1 to 4
[5]
Respondents’
Heads of Arguments (HoA) dd 9 April 2021; paras 6.1 to 8
[6]
Respondents’
HoA paras 9 to 19 and 28 to 29
[7]
Respondents’
HoA paras 34 to 41 and 50 to 51
[8]
Ibid:
paras
3.1 to 3.3
[9]
Applicant’s
HoA, dd 9 April 2021; paras 1 to 4
[10]
Applicant’s
HoA, dd 9 April 2021; para 5
[11]
Christie,
The Law of Contract in South Africa, 6
th
Edition, p229.
[12]
At
para [18]: emphasis added.
[13]
Damont NO v Van Zyl
1962 (4) SA 47
(C), p52
[14]
At
para [102]: emphasis added.
[15]
Beadica
231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA
247 (CC)
[16]
At
para [80]: emphasis added.
[17]
Endumeni
Municipality
(supra)
[18]
See
paragraph 32 above, at para 18 of that judgment, emphasis added.
[19]
Section
1 of the Act 37 of 2002.
[20]
Applicant’s
HoA paras 22-23.
[21]
See
para 17 above.
[22]
A
pplicant’s
supplementary Heads of Argument dated 14 May
2021, P 4
; para 5.
[23]
2014
(4) SA 614
(SCA).
[24]
Applicant’s
Supplementary HoA, supra,
Page
4, para 7.
[25]
Respondents’
Supplementary Heads of Argument dated 27 May 2021, page 3, para 7.
[26]
1983
(4) SA 762
(T) at 766 A – B.
[27]
Ibid
Pages
5 to 6; paras 15 and 16
[28]
2020
(1) SA 494
(SCA); page 10, para 31.
[29]
(Record
p. 283, para 17)
[30]
See
paragraph 10 above.