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[2018] ZAFSHC 116
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VKB Landbou (Pty) Ltd v Van Deventer (6115/2017) [2018] ZAFSHC 116 (5 July 2018)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
Case
no
.
6115/2017
In
the matter between:
VKB LANDBOU (PTY) LTD
and
HERMANUS CHRISTIAAN
JOHANNES VAN DEVENTER
Applicant
Respondent
CORAM
:
I VAN RHYN AJ
HEARD
ON
: 26 APRIL 2018
JUDGMENT
BY
:
I VAN RHYN AJ
DELIVERED:
5 JULY 2018
INTRODUCTION:
[1]
The Applicant, VKB Landbou (Pty) Ltd carries on business as a
financier of farmers and farming activities with its principal
place
of business in Reitz, Free State Province.
[2]
The Respondent is Mr H C J Van Deventer, a farmer and owner of
several farms in the district of Reitz. The Respondent has been
a
client of the Applicant since approximately 1983.
[3]
The Applicant’s claims against the Respondent are for payment
of an amount of R1,563,097.77, interest on the said amount
as well as
a declarator that the two agreements, (“Memorandum van
Ooreenkoms” and “Perfekteringsooreenkoms”)
concluded between the parties authorising the Applicant to sell four
immoveable properties and specified moveable assets, are valid
and
enforceable and authorizing and ordering execution of the said
agreements. In the alternative, should it be found that
the
agreements are not valid and enforceable, Applicant claims payment
and perfecting of the notarial bonds.
[4]
The amounts due in terms of the various agreements and the interest
rates claimed are not in dispute. The Applicant complied
with s 129
of the National Credit Act 34 of 2005 (hereinafter referred to as
“the NCA”) The Respondent raises the following
three
defences namely:
(a) That the various
credit agreements entered into between the Applicant and Respondent
constitute reckless credit and that the
Respondent’s
obligations under the various agreements should be set aside,
(b) In the alternative,
the Respondent prays that he be declared over-indebted and that the
force and effect of the credit agreement
be suspended until the date
as determined by this Court and that his obligations are restructured
in terms of Section 87 of the
NCA,
(c) In addition to the
defences stemming from the NCA the Respondent further relies thereon
that the agreements so concluded were
unconstitutional in that the
Respondent’s rights to constitutional freedom and equality
enshrined in Sections 18, 22, 23,
25 and 31 of the Constitution of
the Republic of South Africa has been infringed upon as the
Respondent was forced to sign the
documentation upon which the
Applicant relies on in the present application.
[5]
The Respondent has lodged a counter-application based on the alleged
reckless credit and/or over-indebtedness and therefore
seeks such a
declarator and the setting aside of his obligations under the various
agreements, alternatively that he be declared
over-indebted and
suspending and/or restructuring his obligations.
[6]
Initially, due to the Respondent’s repeated acknowledgements of
debt over a long period, the Applicant refrained from
dealing with
the chronological history of the Respondent’s indebtedness to
the Applicant. However, due to the allegations
regarding “reckless
credit” and the Respondent’s contention that he is
“over-indebted” the Applicant,
in its replying papers,
painstakingly provided evidence pertaining to previous credit
agreements concluded between the parties
since 21 April 1999.
[7]
Applicant appended copies of the Respondent’s credit
applications covering a period of approximately eighteen (18) years
from which it is evident that the Respondent, on numerous occasions,
applied for credit facilities disclosing his assets, his income,
liabilities and confirming his ability to make payment.
[8]
The Applicant, in its replying affidavit and answering affidavit to
the Respondent’s counter application, contended that
the
Respondent made bold and vague allegations concerning non-compliance
with the NCA but fails to substantiate the same and/or
furnish
particulars and/or facts in support of the allegations.
[9]
The Applicant and the Respondent concluded a series of consecutive
credit agreements emanating as far back as 1999 and resulting
in the
Respondent’s present indebtedness to the Applicant in the
amount of R1,563,097.77 plus interest. As security for the
debt, four
covering bonds over four of the Respondent’s farms and three
notarial bonds over the Respondent’s immovable
property were
registered. The securities are not in dispute and were
registered during the period 1992 to 2013 and remained
valid and
enforceable.
[10]
On 19 June 2015 the Respondent requested that payment of his debt be
deferred. An application for credit was completed
and signed by
the Respondent. The Respondent failed to make the payments due
on 30 September 2015 and requested a further
deferment.
[11]
The Applicant was by then entitled to claim payment of the full
outstanding balance on the Respondent’s two relevant
accounts
with the Applicant and to perfect the securities. The Applicant
however granted the Respondent an extension in respect
of the amounts
due on the one account but required that the amount due in terms of
the second account, namely the term loan be
settled in full.
[12]
Respondent obtained a facility of R1,360,000.00 for a further period
of twelve (12) months and the four covering bonds and
three notarial
bonds were given as security. The Respondent agreed to make
five payments in the amount of R75,000.00 each
on the dates agreed
upon between the parties.
[13]
The Respondent admitted the amount due to the Applicant, the interest
charged on the amount in arrears and his liability towards
the
Applicant. The Respondent failed to make the payments as agreed
upon. On 21 December 2016 the outstanding amount due
was
R1,608,352.14. As a result of the Respondent’s default,
Applicant was, once more entitled to claim payment of the
amount due
and to perfect the securities over the Respondent’s immovable
and movable properties.
[14]
The Respondent again requested a further deferment of payments. The
Applicant granted extension for payment until 1 September
2017.
The Applicant drafted three further agreements. On 1 February 2017
the Respondent admitted liability for the amount
due and signed the
agreement referred to as the “Skriftelike Onderneming”
(Annexure “VKB22”). He requested
an indulgence to seek
independent legal advice prior to signing the agreements referred to
as the “Perfekteringsooreenkoms”
(Annexure “VKB23”)
and the “Memorandum van Ooreenkoms” (Annexure”
VKB24”)
[15]
The Respondent was awarded the opportunity to obtain legal advice
before returning and signing the latter two agreements on
24 February
2017. Again the Respondent admitted his indebtedness to the Applicant
and undertook to pay the amount due before 1
September 2017. In
terms of the perfecting agreement the Respondent agreed that the
notarial bonds are to be perfected and
the secured movable assets
listed, be delivered to the Applicant, despite remaining in the
possession of Respondent.
[16]
The Respondent furthermore confirmed that he has no defence against
the claim for payment of the amount due and consents to
judgment for
the amount due, the calling up of the notarial bonds and the sale of
the movable assets by way of an auction, should
he default on making
the agreed payments.
[17]
In terms of the “Memorandum van Ooreenkoms” the
Respondent confirmed his indebtedness to the Applicant, he consents
to judgment for payment of the outstanding amount and the exercise of
the Applicant’s right in terms of the covering bonds
over the
four farms.
[18]
The Respondent failed to make payment of the amount due on 1
September 2017. The Plaintiff complied with the provisions
of
Section 129 of the NCA by handing a notice in terms thereof, dated 8
September 2017, to the Respondent who acknowledged receipt
thereof.
[19]
During a meeting on 24 October 2017 at Reitz (held not without
prejudice) between the legal representative of the Applicant
and the
former attorney acting on behalf of the Respondent, the Respondent
furnished valuations of his assets and made a payment
offer to the
Applicant. The payment offer was rejected and the Applicant
informed the Respondent that an auction will be
scheduled.
[20]
In his opposing affidavit the Respondent contends that he experienced
financial difficulties for a long period of time and
even though it
was expected of the Applicant to be more circumspect in the
management of his account since the NCA came into operation,
he
states that the Applicant “…
went into overdrive in
an effort to increase my indebtedness to it and to snatch at every
possible opportunity to increase its security
for this indebtedness
.”
[21]
The Respondent denies that the Applicant complied with the provisions
of Section 81 of the NCA even though he has no independent
recollection of whether it was done or not.
THE
RELEVANT PROVISIONS OF THE NCA
:
Reckless
Credit.
[22]
Section 80(1) of the NCA provides as follows:
“
A credit
agreement is reckless if, at the time that the agreement was made, or
at the time when the amount approved in terms of
the agreement is
increased …
(a) The credit
provider failed to conduct an assessment as required by Section
81(2), irrespective of what the outcome of such an
assessment might
have concluded at the time; or
(b) The credit
provider, having conducted an assessment as required by Section
81(2), entered into the credit agreement with the
consumer despite
the fact that the preponderance of information available to the
credit provider indicated that –
(i) The consumer did
not generally understand or appreciate the consumer’s risks,
costs or obligations under the proposed
credit agreement; or
(ii) Entering into
that credit agreement would make the consumer over-indebted.
”
[23]
“
Reckless credit
” is defined in Section 1 of the
NCA as “
the credit granted to a consumer under a credit
agreement concluded in circumstances described in Section 80.
”
The provisions of Section 83 provides as follows:
“
83 Court may
suspend reckless credit agreement
(1) Despite any
provisions of law or agreement to the contrary, in any Court
proceedings in which a credit agreement is being considered,
the
Court may declare that the credit agreement is reckless, as
determined in accordance with this Part.
(2) If a Court
declares that a credit agreement is reckless in terms of Section
80(1)(a) or 80(1)(b)(i), the Court may make an order
–
(a) Setting aside all
or part of the consumer’s rights and obligations under that
agreement, as the Court determines just
and reasonable in the
circumstances; or
(b) Suspending the
force and effect of that credit agreement in accordance with
sub-sections (3)(b)(i).
”
Over-indebtedness
[24]
Section 79(2) of the NCA defines when a consumer is over-indebted.
“
79
Over-indebtedness
(1) A consumer is
over-indebted if the preponderance of available information at the
time a determination is made indicates that
the particular consumer
is or will be unable to satisfy in a timely manner all the
obligations under all the credit agreements
to which the consumer is
a party, having regard to that consumer’s –
(a) Financial means,
prospects and obligations; and
(b) Probable
propensity to satisfy in a timely manner all the obligations under
all the credit agreements to which the consumer
is a party, as
indicated by the consumer’s history of debt repayment.
(2) When a
determination is to be made whether a consumer is over-indebted or
not, the person making the determination must apply
the criteria set
out in ss (1) as they exist at the time the determination is being
made.
(3) When making a
determination in terms of the section, the value of –
(a) Any credit
facility is the settlement value at that time under that credit
facility; and
(b) Any credit
guarantee is –
(i) The settlement
value of the credit agreement that it guarantees, if the guarantor
has been called upon to honour that guarantee;
or
(ii) The settlement
value of the credit agreement that it guarantees, discounted by a
prescribed factor.
”
[25]
Section 81(2) of the NCA provides as follows:
“
A credit
provider must not enter into a credit agreement without first taking
reasonable steps to assess –
(a) The proposed
consumer’s –
(i) General
understanding and appreciation of the risks and costs of the proposed
credit, and of the rights and obligations of a
consumer under a
credit agreement;
(ii) Debt re-payment
history as a consumer under credit agreements;
(iii) Existing
financial means, prospects and obligations; and
(b) Whether there is a
reasonable basis to conclude that any commercial purpose may prove to
be successful, if the consumer has
such a purpose for applying for
that credit agreement.
”
[26]
Section 78(3) of the NCA provides that “
financial means,
prospects and obligations
” with respect to a consumer or
prospective consumer, includes income received by the consumer, the
financial means, prospects
and obligations of other adults with whom
income and obligations are customarily shared and if the consumer has
or had a commercial
purpose for entering into a credit agreement, the
reasonable estimated future revenue flow from that business purpose.
[27]
A party who raises a defence of over-indebtedness must plead and
prove the defence, which includes proving that he is over-indebted
as
envisaged in Section 79 of the NCA
[1]
.
Having regard to the wording of Section 79, such proof must
inevitably involve details of,
inter
alia
,
the consumer’s financial means, prospects and obligations.
Financial means would include not only income and expenses,
but also
assets and liabilities. Prospects would include prospects of
improving the consumer’s financial position,
such as increases
and even liquidating assets.
The
evidence relating to reckless credit and over-indebtedness
[28]
Respondent’s credit application on 21 April 1999 disclosed
assets to the amount of R480,900.00, an income of R300,000.00
and a
liability to Landbank in the amount of R60,000.00. Four (4)
years later, on 13 June 2003, the Respondent, in a further
credit
facility application, disclosed assets to the value of R2,190,291.00
and liabilities amounting to R445,608.00. The Respondent,
almost
yearly applied for a credit facility confirming and certifying his
assets, liabilities and income from farming and rental.
[29]
In 2008 the Respondent’s assets had increased to the amount of
R7,878,977.00 with liabilities amounting to R858,969.00.
The
Applicant again conducted a comprehensive credit assessment and
credit was granted, based on the large surplus assets and substantial
anticipated income of approximately R2,400,000.00.
[30]
At the time of the Respondent’s application for a credit
facility of R1,800,000.00 in July 2013 his assets were reflected
to
be R10,310,832.00. His assets exceeded his liabilities by
approximately R9,000.000.00 indicating that he was solvent by a
substantial
margin and clearly able to service his debt. The
Respondent provided the financial information, confirmed the
correctness thereof
on each credit application and signed the
documentation confirming the following:
“
Ek
sertifiseer hiermee dat die inligting hierin vervat korrek en
volledig is en dat ek bewus is dat dit gebruik sal word om
kredietfasiliteite
te oorweeg.
”
[31]
Subsequent to the Respondent defaulting in December 2015 and
obtaining a deferment until December 2016 with a further extension
until September 2017, no further securities were required and no
additional credit was granted. Therefore, no credit application
and/or assessment was required.
[32]
The Respondent contends that he was a “
struggling farmer in
dire straits as far as cash flow was concerned
”. The
mere fact that he regularly applied for credit is, according to him,
proof thereof. He furthermore states
that his “
factual
solvency
” does not alter the fact that credit was extended
recklessly. In his replying affidavit in the counter
application
he however states that he truthfully submitted
information to the Applicant.
[33]
The Respondent appended a valuation of his livestock and farming
equipment, dated 23 October 2017, to his opposing affidavit.
The livestock was valued at R1,138,000.00 and the farming equipment
at R202,100.00, totalling R1,340,100.00. A valuation
of the
Respondent’s six (6) farms, dated 1 February 2018 amounts to
R8,800,000.00.
[34]
Over-indebtedness refers to a situation where, after a careful
assessment is conducted and all available information processed,
a
determination is made that the particular consumer is, or will be
unable to satisfy all the obligations under all the credit
agreements
to which he is a party, in a timely manner. In order to do the
above, a consumer’s financial means, prospects
and obligations
and probable propensity to satisfy all the obligations under all the
credit agreements to which the consumer is
a party in a timely
manner, as indicated by the consumer’s history of debt
repayment, must be taken into account.
[2]
Reckless credit or lending, on the other hand, involves a situation
where the consumer becomes over-indebted as a result
of the granting
of reckless credit.
[35]
Upon reading the pre-amble of the Act it seems as if there is a
one-sidedness in that obligations exist only for the credit
provider,
however, the fact that it mentions “
granting and use
”,
clearly indicates that certain obligations exists for the prospective
consumer as well. One of the objects of the NCA is
the discouragement
of reckless credit extension. There are certain measures in
place to prevent reckless credit. It
place obligations on both
credit provider, as well as the consumer. The most important
obligation the Act places on a credit
provider, is by making the
conduction of a pre-agreement financial or affordability assessment
on behalf of the consumer compulsory.
[36]
If the credit provider fails to conduct such assessment, the credit
agreement entered into between the credit provider and
the consumer
is classified as reckless lending or reckless credit, irrespective of
what the outcome of the assessment might have
been. In the
event that the credit provider conducts an affordability assessment,
and the outcome of the assessment indicates
that the consumer does
not understand the risks, costs, or commitments made in terms of the
agreement, the agreement will also
be classified as reckless lending
or credit.
[37]
On the other hand the consumer needs to join the credit provider in
the task of preventing reckless credit which, may in the
end, lead to
over-indebtedness. In terms of the provisions of Section 81(1)
of the NCA the consumer is required to answer
completely and
truthfully any questions, or provide all information requested by the
credit provider upon applying for credit or
while the application is
being considered by the credit provider. The information which
the consumer needs to provide is
much more elaborate than a mere
affordability assessment and therefore the complete and utmost
honesty of the consumer is crucial
in the credit application process.
[38]
The Respondent alleged that during the period 2006-2008 he was
desperate and was therefore in no bargaining position to negotiate
a
credit agreement. He however continued to apply for further credit
facilities from the Applicant,
inter alia
to settle his debt
with Landbank. The Respondent indicated that due to being the
owner of valuable assets, the Applicant
did not have any interest in
his ability to repay the credit advanced, but was only interested in
the security. This statement
is totally without substance. It begs
the question whether, if this was indeed his perception of the
Applicants intentions, why
he did not apply for credit facilities at
another financial institution to repay his debt with the Applicant
and continue a more
advantageous relationship with another credit
provider.
[39]
It is common practise for agricultural financiers to require security
for advancing credit facilities to farmers. The Respondent
obviously
used the financial assistance afforded to him to further his farming
operations for grain production and cattle/sheep
farming. He
was able to increase his assets considerably since 1999 as is evident
from the numerous lists of assets and inspection
reports appended to
the Applicants papers.
[40]
The Respondent regularly applied for an increase in his credit
facility, with the Applicant in turn requiring additional security.
Even though the Respondent was aware that he had to repay the credit
advanced to him since December 2014, he failed to sell any
property
in a so called “controlled manner” or at all and now
blames the Applicant for his failure to fulfil his financial
obligations. The Respondent’s vague and unsubstantiated
allegations that he was not in an equal bargaining position is
clearly
false. He was provided with an opportunity to obtain legal
advice before entering into the agreements, which forms the subject
of the present application with the Applicant
[41]
The Respondent completed the application forms, furnished the
information and particulars pertaining to his financial means,
prospects and obligations and advised to his probable propensity to
satisfy all his obligations under the credit agreements. There
is no
evidence before me to indicate that he was forced in any manner to
conclude any of the agreements. The Respondent failed
to set out his
defence of reckless credit with sufficient and convincing
particularity. In fact the only evidence pertaining to
the numerous
credit agreements concluded between the parties was submitted by the
Applicant.
[42]
The Respondent is a businessman with many years of experience in the
farming industry. His relationship with the Applicant
over the past
35 years clearly indicates that he is familiar with the risks
associated with farming, the regular droughts, extreme
weather
conditions in winter and the risks of incurring credit. Furthermore,
in terms of the provisions of Section 81(1) of the
NCA the Respondent
is required to answer completely and truthfully any questions and
provide all information required by the Applicant
upon applying for
credit. Should there be an allegation against the credit provider
that the credit agreement constitutes a reckless
credit agreement and
the credit provider is able to establish that the consumer failed to
entirely and truthfully answer any request
for information made by
the credit provider during its assessment in terms of Section 81 it
may be a complete defence against such
allegation.
[3]
[43]
Of importance however is the Respondent’s contention that his
livestock and farming equipment is valued at R1 340 100,00
and his immoveable property at R 8 000 000.00. He then
alleges that the Applicant’s application to sell the four
immoveable properties for a mere short fall of R 240 000.00 is
an indication of the “
ulterior motive
” of the
Applicant to put his farms up for sale “
to be picked up at a
basement bargain price
”. Clearly the Respondent is on his
own version, not over indebted The Respondent dismally failed to
provide sufficient information
to substantiate the defence of
reckless credit. The Respondent’s defences of over-indebtedness
and the allegations that he
was forced into “
signing the
documentation that the Applicant relies on
” is an obvious
stratagem to delay the Applicant’s claim.
[44]
At the hearing of the application, Mr Zietsman SC on behalf of the
Applicant informed the Court that the Respondent has made
a
substantial payment of more than R700 000.00 and therefore
requested an order for payment of the balance being R728 097.77.
Surprisingly the Respondent’s counsel, Mr Sander had no
knowledge of the fact that the Respondent made the payment with the
inevitable result that his arguments that the Respondent is over
indebted due to reckless credit advanced by the Applicant did
not
pass muster.
[45]
The purpose of the NCA is to provide a more efficient and equitable
credit system by balancing the rights of credit providers
and
consumers. The long title to the Act describes the statute as being
intended to promote a fair and non-discriminatory marketplace
for
access to consumer credit and for that purpose, amongst other
matters, to promote responsible credit-granting and
use,
and
for that purpose to prohibit reckless credit-granting and to provide
for debt reorganisation in cases of over-indebtedness
.
[46]
In
SA
Taxi Securitization v Mbatha
[4]
it was found that since the enactment of the NCA there seems to be a
tendency by consumers to make bald allegations that
they are
‘over-indebted’ or that there has been ‘reckless-credit’.
With reference to the
Standard
Bank of South Africa v Panayiotis
case Levenberg AJ held that these allegations should not be:
“‘
inherently
and seriously unconvincing’ should contain a reasonable amount
of verificatory detail, and should not be ‘needlessly
bald,
vague or sketchy’. A bald allegation that there was
‘reckless-credit or there is ‘over-indebtedness’
will not suffice”
[47]
Levenberg AJ held that the intention of the legislature was not to
shift the balance of power to the extent that all the power
in the
credit relationship would amass into the hands of the consumer and
found as follows:
“
[38]
Interpretation of the various sections of the NCA involves an attempt
to balance the interests of both lenders and borrowers
in such a way
as to facilitate the flow of credit in a responsible manner, and to
provide debt relief where appropriate. The financial
stability of
credit providers is in this context as important as that of the
consumers. The more successful the credit provider,
the more credit
that is available in the capital markets and the more favourable the
rates that are available to consumers. Consumers
benefit when credit
providers are successful. The failure of credit providers adversely
affects consumers and the flow of credit.
Both groups are dependent
upon each other and that is why a balancing act is necessary.”
[5]
[48]
The NCA does not envisage that a consumer may claim to be
over-indebted whilst at the same time retaining possession of the
moveable and/or immoveable property which form the subject matter of
the agreement between the parties.
[6]
Mr Zietsman SC contented that the Applicant will obviously not
proceed to sell the immoveable property of the Respondent if the
proceeds of the moveable property will be sufficient to discharge the
Respondent’s indebtedness with the Applicant.
[49]
It is evident that proper assessments were conducted by the
Applicant. The Respondent, being a longstanding client of the
Applicant indicated that there was a reasonable prospect that he
would be able to yield a satisfactory income (supplemented by a
rental income) to service the credit facility advanced to him. The
advancing credit did not make the Respondent over-indebted.
His
solvency position remained sound by reason of his good net-asset
position.
[50]
The agreements entered into by the parties all provide for payment of
costs by the Respondent on an attorney and own client
scale.
Similarly the parties agreed upon the rate of interest applicable in
the event of the Respondent’s default.
[51]
In the premise, the Respondent has not discharged his onus that the
credit was recklessly granted or that he is over-indebted.
Accordingly the counter-application should fail. The Applicant
is entitled to the relief claimed in the draft order submitted
by Mr
Zietsman SC.
[52]
Accordingly, I make the following orders:
1. Respondent to pay to
the Applicant the amount of R728,097.77;
2. Interest as follows:
2.1 On the amount of
R1,563,097.77 at the rate of 20% per annum, calculated from 1
November 2017 to 19 April 2018;
2.2 On the amount of
R1,433,097.77 at the rate of 20% per annum, calculated from 20 April
2018 until 23 April 2018;
2.3 On the amount of
R848,097.77 at the rate of 20% per annum, calculated from the 24
th
April 2018;
2.4 On the amount of
R728,097.77 at the rate of 20% per annum, calculated from 25
th
April 2018 to date of final payment.
3. That the “
Memorandum
van Ooreenkoms
”, annexure “VKB24” to the
founding affidavit, is valid and enforceable.
4. Plaintiff is entitled
and authorized to sell the following immovable properties of the
Respondent by auction, in terms of clause
3 of the said annexure
“BKB24”:
4.1 Remainder of the Farm
Sarona 1089, district Reitz, Free State Province, held by Certificate
of Registered Title T4732/2006;
4.2 The Farm Nebo A957,
district Reitz, Free State Province, held by Certificate
of Registered Title T4732/2006;
4.3 The Farm Tevrede
1088, district Reitz, Free State Province, held by Certificate of
Registered Title T4737/2006;
4.4 Remainder of the farm
Makwasi 690, district Reitz, Free State Province, held by Certificate
of Registered Title T4732/2006.
5. Respondent is ordered
to comply with clause 3 of annexure “VKB24” referred to
in paragraph 3 above, and allow Applicant
to sell the immovable
properties in terms thereof, failing which the Sheriff is authorized
to enforce such compliance.
6. The
“
perfekteringsooreenkoms
” annexure “VKB23”
to the founding affidavit is valid and enforceable.
7. The Plaintiff is
entitled and authorized to sell by auction, in terms of clause 7 of
the said annexure “VKB23”, Respondent’s
movable
assets listed in annexure “B” to the said annexure
“VKB23” and also attached to the Notice of Motion
as
annexure “B1” and “B2” respectively,.
8. Respondent is ordered
to comply with clause 7 of the said annexure “VKB23” and
allow Applicant to sell the movable
assets in terms thereof, failing
which the Sheriff is authorized to enforce such compliance.
9. Respondent is ordered
to pay the Applicant’s costs on an attorney and own client
scale.
_______________________
I
VAN RHYN AJ
On
behalf of the Applicant: Adv. P ZIETSMAN SC
Instructed
by: HORN & VAN RENSBURG ATTORNEYS
On
behalf of the Respondent: Adv. A SANDER
Instructed
by: E G COOPER MAJIEDT ATTORNEYS
[1]
Standard
Bank of South Africa LTD v Panayiotts
2009(3) SA 363 (WLD) at 366 [8]
[2]
Section 79(1)(a) of NCA
[3]
Section 81(4) NCA
[4]
2011 (1) SA 310
(GSJ) at 315 [26]
[5]
At 317 H-J
[6]
Standard
Bank of South Africa v Panayiotis
at 375 [77]