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[2019] ZAFSHC 51
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The Standard Bank of South Africa Ltd v Du Toit N.O and Others (1699/2018) [2019] ZAFSHC 51 (29 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 1699/2018
In
the matter between:
MYBURGH
GROEP (PTY) LTD
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA LTD
Respondent
In
re
:
THE
STANDARD BANK OF SOUTH AFRICA LTD
Applicant
and
JACQUES
DU TOIT N.O
1
st
Respondent
(In
his capacity as Business Rescue practitioner of
MYBURGH
GROEP (PTY) LTD
)
MYBURGH
GROEP (PTY) LTD
2
nd
Respondent
(Registration
No: 2015/084718/07)
(Under
business rescue supervision)
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
3
rd
Respondent
CORAM:
DAFFUE,
J
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
29 MARCH 2019
[1]
The
Myburgh Group (Pty) Ltd (“Myburgh”) is the applicant in
this application for leave to appeal, it having been finally
wound up
on 15 November. Standard Bank of SA Ltd, (“the Bank”),
the creditor who successfully launched the winding-up
application, is
the respondent in this application. It opposes the
application. In their heads of argument the legal
representatives referred to the parties as cited in the winding-up
application. I shall refer to them herein as “Myburgh”
and “the Bank” to avoid confusion.
[2]
Due
to administrative errors, the application for leave to appeal, which
was filed as long ago as 16 November 2018, was brought
to my
attention on 7 February 2019 only. By agreement with the
parties, heads of argument were filed for me to consider the
application in chambers.
[3]
I
referred to relevant authorities and held in
Matoto
v Free State Gambling and Liquor Authority and others
(4629/2015)
[2107] ZAFSHC 80 (8 June 2017) that the bar for granting leave to
appeal has been raised with the introduction of s
17(1) of the
Superior Court Act, 10 of 2013. Leave to appeal should only be
granted whenever a court comes to a well-considered
conclusion that
there are grounds on which the court of appeal
would
come to a different conclusion.
[4]
I
do not intend to deal with any of the grounds of appeal in any detail
as I believe the judgment speaks for itself. I shall
briefly
refer to pertinent issues.
[5]
I
have fully dealt with the defence based on
s 45
of the
Companies Act,
71 of 2008
in paragraphs [29] to [32] and nothing more needs to be
said, save that even if the omnibus guarantee is disregarded which I
found
should not be the case, Myburgh’s overdraft facility
remains intact, meaning a debt in excess of R78m.
[6]
The
alleged non-fulfilment of the suspensive agreement is a red herring.
I dealt with the issue in paragraph [34] of the judgment.
[7]
The
reliance on alleged non-compliance with the National Credit Act, 34
of 2005 (“NCA”) is without substance.
I stated in
paragraph [35] that I was satisfied that the Bank sufficiently dealt
with the points raised in the answering affidavit.
It must be
pointed out that the SCA held in
Naidoo
v Absa Bank Ltd
2010 (4) SA 597
(SCA) at para [4] that it is not necessary to comply
with s 129(1)(a) of the NCA before commencing with sequestration
procedure.
Sequestration procedure does not in essence
constitute proceedings to enforce a credit agreement, thus for the
recovery of a debt,
but its purpose is to establish a
concursus
creditorem
.
See also:
Investec
Bank Ltd v Mutemeri and another
2010 (1) SA 265
(GSJ) at paras [27] – [31].
[8]
In
winding up procedure it does not assist a debtor to show that the
applicant’s claim should be reduced,
e.g.
by eliminating excessive finance charges. See:
Prudential
Shippers SA Ltd v Tempest Clothing Co (Pty) Ltd and others
1976 (2) SA 856
(W) at 861F.
[9]
The
allegation that reckless credit was advanced to Myburgh is without
substance. Myburgh relied on this defence in the answering
affidavit, but this has been dealt with fully and comprehensively in
the replying affidavit. Although I did not deal specifically
with Myburgh’s allegation in my judgment, I duly considered the
allegations, heads of argument and oral arguments.
The Bank
explained the plethora of documents and information relied upon to
assess Myburgh and the other entities within the Group.
In
particular, and save for its own investigations, it relied on
information obtained from Mr Dudley Myburgh.
[10]
Finally,
I am satisfied that Myburgh’s version pertaining to the
Addendum entered into in respect of the increased overdraft
facility
is devoid of any merit. The allegation that it does not contain
the full terms and conditions of the credit facility
agreement,
especially insofar as no reference to interest appears in the
document, is incorrect. Myburgh and its legal representatives
elected to turn a blind eye to the written terms and conditions
attached to the credit facility agreement (“the Addendum”)
entered into on 9 October 2017. See: last paragraph of the
Addendum at p 55 and pp 57 – 62. Interest is dealt
with
in paragraph 8 of the terms and conditions.
[11]
In
conclusion it is reiterated that Myburgh’s senior counsel all
but conceded in his heads of argument filed in the winding-up
application the indebtedness of R78 588 837.98 in respect
of the overdraft facility. See: my judgment, paragraph [20].
In
Mr Dudley Myburgh’s affidavit of 19 March 2018 deposed to for
purposes of business rescue, he admitted an indebtedness
towards the
Bank in an amount of R189m. See: my judgment, paragraph [26].
[12] I have
not been persuaded that the application for leave to appeal is
meritorious, falling within the parameters
set out in s 17 of the
Superior Court Act.
[13] Consequently
the following order is made:
The application for leave
to appeal is dismissed with costs, such costs to include the costs of
two counsel.
J P DAFFUE, J
On
behalf of Applicant
: Mr HSL Du Plessis
Instructed
by
: c/o Blair Attorneys
Bloemfontein
On
behalf of Respondent(s) : Advv P Zietsman SC
& J Els
Instructed
by
: Phatshoane Henney Inc
Bloemfontein