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[2018] ZALMPPHC 15
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Firstrand Bank Ltd v De Beer NO and Others (3091/2017) [2018] ZALMPPHC 15 (28 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 3091/2017
In
the matter between:
FIRSTRAND
BANK
LTD
APPLICANT
and
LAMBERTUS
NICOLAAS DE BEER SRN N.O
1
ST
RESPONDENT
GERT
JACOBUS DE BEER
NO
2
ND
RESPONDENT
LAMBERTUSNICOLAAS
DE BEER N.O (IN THEIR
CAPACITIESAS
TRUSTEE OF THE TAMBOTIE
BOERDERY
TRUST,
IT2076/91)
3
RD
RESPONDENT
LAMBERTUS
NICOLAAS DE BEER SRN
4
TH
RESPONDENT
GERT
JACOBUS DE
BEER
5
TH
RESPONDENT
LAMBERTUS
NICOLAAS DE
BEER
6
TH
RESPONDENT
JUDGMENT
M.G.
PHATUDI J
[1]
In this application, the Applicant seeks judgment against the first
three Respondents in their capacities as trustees of the
Tambotie
Boerdery Trust (IT205/91). Judgment is also sought against the
remainder of the Respondents who are cited as sureties
and
co-principal debtors of the trust.
[2]
The claims are founded on an overdraft facility as well as a term
loan both of which are secured by mortgage bonds. The claims,
as
combined amount to the capital debt of R5 574 880.32 together with
interest thereon at prime rate of 9.75% per annum and compounded
monthly from 01 January 2016 to date of payment. The Applicant also
claims costs of suit on an attorney and client scale. In addition,
an
order declaring the remaining extent of the farm Rietvlei 617 KQ,
Limpopo Province held under consolidated Title T8653/1998,
and the
farm Rietvlei 808 KQ held by certificate of consolidated Title
T9510/14, specially executable in its favour
[3]
The application is opposed by all the Respondents. The main
contention as initially raised by the Respondents was that the court
lack jurisdiction as the cause of action occurred mainly outside its
area of jurisdiction. This point was, however, by agreement
subsequently abandoned at the hearing of the matter. What remained
extant was the submission that the application was not only
capricious, but was also brought against the spirit of certain
agreements or arrangements arrived at be ween the Applicant and
De
Beer Group of entities, inclusive of the Respondents. The
Application, so the argument went, constituted a breach of contract
by the Applicant.
SHORT
BACKGROUND:
[4]
The Applicant on 10 September 2014 offered a credit facility to some
entities, one of which was the Tambotie Boerdery Trust
(hereinafter
called "the trust")
The
credit facility offered to the trust comprised a short-term direct
working capital and a long-term loan, the total of which
amounted to
R4 750.00.00 payable over fourty months and upon demand. This
document constituting a transaction document contained
several terms
and conditions which bound the parties.
[5]
Similarly, the document ("credit facility") in clause 2.1
makes provision that the short-term direct facility could
be availed
by way of overdraft or other facility which, in the Applicant's sole
discretion, may be allowed.
[6]
A further transaction concluded
by the parties, in particular, the trust was a loan agreement
concluded on the 29 September 2011.In
terms of this document the
Applicant lent to the trust the sum of R7 500 000.00 appearing in
Applicant's founding affidavit
[1]
("FA")
[7]
The loan agreement, stipulates in clause 1.2 that:
"Upon
and subject to the terms and conditions hereinafter set out, the Bank
will provide or procure for the Borrower who hereby
arrows the sum of
R7 500 000 (seven million five hundred thousand)". Once approved
or granted, and subject to the conditions
precedent, the Respondent
("the trust") would be entitled to the draw down the loan
forthwith.
[8]
Clause 4.1 made provision for the repayment of the loan to the
Applicant. This loan, was undoubtedly secured by a general covering
Bond registered in favour of the Applicant by the trust. (IT:2075/91)
in the amount of and with ranking as indicated over the fixed
properties namely, The Farm Reitvlei 617 KQ, Thabazimbi, Limpopo
Province. The 4th, 5th and 6th Respondents, provided surety in
the
amount of R7 500 000.00 and interest thereon in favour of the
Applicant.
[9]
In binding themselves jointly and severely as co-sureties and
co-principal debtors as outlined, the Respondents, also renounced
the
usual defences of the benefits of
excussio, division and cession
of action, including the benefits of exceptio
errore
calculi,
exceptio
non numerate pecuniae and
that
of non
causa debiti.
[10]
The stipulations in the loan agreement constituted the entire
agreement
inter
partes
and
any "amendment," addition, alteration or cancellation to
the provisions thereof, shall only be deemed to be of force
arid
affect if such amendment, addition, alteration or cancellation is
reduced to writing and signed by the parties"
[2]
.
[11]
In a letter addressed to the
trustees of Tambotie, (the trust) dated 06 October 2011, the
Applicant accentuated in detail the nature
of the loan, in summary,
the amount thereof, the duration of the loan and its termination date
being 07 October 2016
[3]
.
Annexure H, also affects the extended life span of the loan ending 07
August 201.7 with an outstanding balance of R877 974 as
at 28 March
2015. It appears that at the time of the launching of the present
application, the balance due owing and payable by
the trust and its
trustees as sureties, amounted to R4 230 572.02 as at 16 January
2016
[4]
.
[12]
Failure by the Respondents for not having serviced either the credit
facility and/or the loan agreement, squarely placed them
in deep
debt. As a result, the Applicant's attorneys addressed a letter of
demand to the trustees of the trust dated 03 December
2015, claiming
payment of the capital debt due then amounting to R4 155 945.50. It
appears that despite demand, the Respondents
were unable to discharge
the debt due and payable by them.
[13]
As a result of the default, application was then launched claiming
payment against the Respondents.
[14]
I point out that the provisions
of the
National Credit Act 2005
[5]
do not qualify to either of the agreements between the Applicants and
the trust in that despite being categorized as a juristic
person
given the number of its trustees, the trust in addition it appears,
has an asset value or annual turnover cumulatively with
combined
asset value of the joint juristic entities when the agreements were
reached, equal to or in excess of the threshold amounting
to R1 000
000.00 inclusive of the unnumbered immovable assets in favour of the
Applicant.
[15]
Bearing in mind the foregoing considerations it was submitted on
behalf of the Applicants that it is entitled to payments as
claimed.
[16]
The respondents in an attempt to resist the application, submitted in
the main that the application is made mala fide and offend
the spirit
of the alleged agreements or arrangements the parties agreed on with
the De Beers Group of entities.
[17]
In contextualizing their apparent defence stated above, the following
factors appear to be common cause:-
17.1 The Respondents jointly conduct
farming activities on various neighbouring farms adjacent to the
Crocodile River, Thabazimbi.
17.2 The immovable properties at issue
are all registered in the name of the individual trustees.
17.3 The credit facility relied on
refers not only to the trust, but also other entities, e.g Koedoskop
River Farm Alfa CC and Seringhoek
Boerdery CC. These credit facility
cover also the 04th to 05th Respondents.
17.4 It is not disputed that cross
securities were given to such different entities and to the said
Respondents. These entities
are known as the De Beer Group.
[18]
The respondent's further
contention was that the Applicant allegedly agreed and undertook not
to pursue litigation in this matter.
The Respondents seems to place
reliance on a " draft letter of undertaking on behalf of the
First Rand Bank Ltd and Wesbank
Ltd
[6]
"
( undated and unsigned)
[19]
On closer examination of the alleged undertaking, it does not seem to
me to constitute a valid document giving rise to a "settlement
agreement" as alleged by the Respondents. In any event, the
document relied on has not been signed nor does it bear a
date
upon which it has been generated either. The document, furthermore,
even if it were signed, it would have been operative as
between the
Applicant, the trustees (who are also co-sureties) and Koedoskop
River Farm Alfa CC ("Koedoskop"). The latter
entity is not,
in my view, a party to the Loan Agreement referred to in annexure "G"
herein.
[20]
In consequence, I find that there can be no breach of a non-existent
contract, the business operations of Koedoeskop which
were otherwise
limping, are in my view irrelevant for the purposes of determining
the Respondent's guarantees' under the credit
facility, loan and·
deeds of suretyship they bound themselves to the Applicant.
[21]
The Respondents, on their own papers, concede that Koedoeskop was
sometime before the launching of the current application,
placed
under provisional business rescue. That alone is indicative that it
traded under insolvent circumstances if I may put it
bluntly. At one
point while placed under supervision, Koedoeskop made an attempt to
salvage itself and was placed under yet another
third party, namely,
Chicundo Properties (Pty) Ltd. This was done with full knowledge of
the liquidators:
[22]
The latter company allegedly made part payment of R3.6 million for
distribution pursuant to the business rescue plan then in
place for
Koedoskop.
[23]
There is, however, no cogent evidence to substantiate this
allegation. The alleged agreement in terms of the final liquidation
order granted against Koedoeskop is to, in my mind, neither here nor
there. That redeeming process is immaterial to these proceedings.
[24]
What remains is whether the debt/s had been fully serviced as the
Respondents were obliged to.
[25]
In the circumstances, I am unable to infer any palpable m
al
a
tides on the part of the Applicant. I cannot even see how the
business rescue plans enter the picture in this claim, in as much
as
no breach of contract could have been committed as between the
parties.
[26]
There exist no reason for the relief sought not be granted as prayed
for.
[27]
In the result, I make an order as follows:
ORDER:
[1]
Judgment against the First, Second and Third Respondent (in their
capacities as trustees of the Tambotie Boerdery Trust, IT205/91)
and
the Fourth, Fifth and Sixth Respondents Jointly and severally, the
one paying, the other to be absolved is granted for:-
1.1
Payment of the sum of R1 121880.47;
1.2
Interest on the sum of R1 121 880.47 at the
Applicant's prime rate of interest (currently 9.75)%per annum,
calculated on the daily
balance outstanding and compounded monthly
from 1 January 2016, until date of payment;
1.3
Payment of the sum of R4 252 99.85;
1.4
Interest on the sum of R4 252 99.85 at the
Applicant's prime rate of interest (currently 9.75o/o) plus 1% per
annum, calculated
on the daily balance outstanding and compounded
monthly from 26 January 2016 until date of payment;
1.5
Cost of suit on the scale as between attorney and
own client.
[2]
An order declaring the following immovable properties specially
executable in favour of the Applicant:-
2.1 Remaining Extent of the Farm
Rietvlei 617, Registration Division KQ, Limpopo Province , measuring
229, 1995 (TWO HUNDREND-AND
TWENTY-NINE COMMA ONE NINE NINE NINE
FIVE) hectares held by certificate of consolidated Title
T86563/1998;and
2.2 The Farm Rietvlei 808,
Registration Division KQ, Limpopo Province, measuring 643/8664 (SIX
HUNDRED-AND-FORTY-THREE COMMA EIGHT
SIX SIX FOUR) hectares held by
certificate of consolidated Title T9510/14.
________________
M.G
PHATUDI
Judge
of the High Court
Limpopo
Division
R
E
PRESENTATIVES:
1.
Counsel for Applicant
: Adv D.M
Leathern SC
Instructed
by
: Rorich, Wolmarans and Luderity Inc Brocklyn, Pretoria
2.
Counsel for Respondents
: Adv. G.F Heyns
Instructed
by
: Hertzenberg Inc Hartfield, Pretoria
3.
Date heard
: 11 October 2017
4.
Date Delivered
: 28 February 2018
[1]
Annexure G P 73-8 4
[2]
Clause 14 loan agreement, annexure G, P82, "FA".
[3]
Paginated Index P98 " FA".
[4]
Paginated Index, P 98 " FA"
[5]
Section 1
Act 34 of 2005-the trust being a juristic person under
this Act, it being having three or more individual trustees.
[6]
Annexure " L4" pp 220-221, Buddle 3