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[2014] ZAGPPHC 293
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Land And Agricultural Development Bank Of South Africa v Factaprops 1052 CC and Another (64702/2010) [2014] ZAGPPHC 293 (19 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION* PRETORIA)
Case
No. 64702/2010
DATE:
19 MAY 2014
In
the matter between:
Land
and Agricultural Development Bank Of South
Africa
.......................
Plaintiff
And
Factaprops
1052 CC
.
…....................................................................
First
Defendant
Ismail
Ebrahim
Darsot
.................................................................
Second
Defendant
FLY
NOTE:
Practice
- pleadings-Amendment of Plea-when granted.
Whether
if granted would render pleading excipiable-whether respondent
prejudiced due to amendment
Commercial
- whether the word "mortgage bond" in Section ll(a)(i) of
the 1969 Prescription act wide enough to include
reference to a
Notarial Mortgage Bond - what the prescription period is in respect
of any other debt not covered by rest of Section
11(a); 11(b) and
11(c) of
Prescription Act 1969
- and any other Act of parliament - a
mortgage bond not a notarial bond - a distinction to be maintained to
define characteristics
of each* The 30-year period of prescription
not applicable to notarial bond it not being a mortgage bond under
Section ll(a)(i)
of the 1969
Prescription Act
- If proved that the
source of debt is a notarial contract - 6-year prescription period
applies under
Section 11(c)
of the Act - where cause of debt is the
loan agreement - prescription period applicable is 3 years.
PHATUDI
AJ:
INTRODUCTION:
[1.]
The dispute in this matter presents not only a vexed question whether
a special Notarial Bond("notarial bond") could
be construed
as a mortgage bond within the meaning of Section ll(a)(i) of the
Prescription Act
[1
]
,
but also poses some difficulties as to the correct or proper
interpretation thereof which constitutes
res
nova
in our law.
[2]
The factual matrix that gave rise to the present application
are briefly the following:
[3]
The applicants [the defendants in the main action) seek leave
to amend their plea in terms of the provisions of Rule 28(4) of the
Uniform Rules of Court (“the Rules"). The plea sought to
be amended incorporates in it a Special Plea of prescription
as set
out in the notice in terms of Rule 28(1) dated 02.09.2013.
[4]
Upon delivery of the relevant notice in terms of Rule 28(1)
referred to, the respondent(plaintiff in the main action) served a
Notice
of Objection to the proposed amendment, contending that its
cause of action is for payment of a debt secured by a notarial bond,
and that the applicable prescription period in terms of section
11(a)(1) of the Prescription Act of 1969, ("the Act")
is,
therefore, thirty(30) years. Consequently, the Special Plea sought to
be inserted by the proposed amendment was not only bad
in law, but
also did not disclose any defence, and would accordingly be
excipiable if allowed to stand.
[5]
It was on the basis of the objection aforementioned that the
applicants now approached this Court for leave to amend their plea by
introducing the Special Plea of prescription of the claims against
them.
[6]
The crisp question that calls for consideration is two-fold:
(a)
whether a registered Notarial Mortgage Bond, for a debt,
falls
within
the ambit "mortgage bond" in terms of the provisions of
Section ll(a)(i) or a debt arising from a "notarial
contract"
in terms of section 11(c) or a written loan contract in terms of
section 11(d)
of the
Prescription Act, 1969
, or, put differently,
(b)
what the period of
prescription is in respect of a debt secured by a notarial bond
envisaged in
section 1
of the Securities by Means of Movable Property
Act, 1993
[2]
("the
Securities Act").
[7]
In an attempt to formulate a proper and acceptable
interpretation, and the effect of extinction of debts by
prescription, I venture
to enter this treacherous terrain by first
analysing and reviewing the old authorities on the subject, and where
necessary, to
evaluate the legal framework applicable.
THE
APPLICABLE LEGAL FRAMEWORK
[8]
The legal position that obtains with regard to the extinction
of debts by prescription is regulated by Chapter 111, in particular,
Sections 10-16 of the 1969
Prescription Act
SectionlO(l)provides
:-
"subject
to the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after a lapse of
the period which in
terms of the relevant law applies in respect of the prescription of
such debt".
Section
10(2)
provides that:-
"By
the prescription of a principal debt a subsidiary debt from such
principal debt, shall also be extinguished by prescription".
[9]
In the premises, it is of cardinal importance to always bear
in mind that a debt shall be extinguished by prescription after a
lapse
of the period which in terms of the "relevant law applies
in respect of the prescription of such debt”(my own
underlining).
[10]
For the purposes of this judgment, I am called upon to
determine the lapse of the period in terms of a debt, which in the
present
instance, has been secured by a special notarial bond within
the purview of Section 1 of the Securities Act, 1993, and also to
establish whether such a debt has been consumed by prescription under
the relevant provisions of the
Prescription Act, 1969
. The conclusion
arrived at will accordingly pave way whether or not to permit the
amendment sought
[11]
Counsel for the applicants contended, on the one hand, that
firstly, and on the formulation of the respondent's declaration, the
summons was served more than three[3) years from the dates on which
the alleged debts arose, with the result that the respondents'
claim
is prescribed in terms of section 11(d) of the Act (Three-year
extinction period).
[12]
It was furthermore contended on behalf of the applicants in
the
alternative to reliance on Section 11(d) thereof, that the
respondents' claim is prescribed in terms of the provisions of
Section
11(c) of the Act. It was further submitted that by virtue of
the fact that the indebtedness was secured by a "notarial
contract"
with more than six(6) years having passed from the
dates on which the alleged debt had arisen, and the period of service
of the
summons, the debt was extinguished by operation of
prescription (the six-year period of extinction).
[13]
Counsel for the respondents, on the other hand, opposes the
application. The respondents' opposition is predicated on the
question
of law raised in its notice in terms of Rule 6(5)(d)(iii) of
the Rules of this Court. In its notice of objection to the proposed
amendment, the respondents’ contention was that the proposed
amendment, if allowed, would not disclose a defence in law,
and
would, therefore, technically be excepiable. The submission on behalf
of the respondent, is simply that because its cause of
action is
premised on payment of a debt secured by a mortgage bond in respect
of which a thirty-year period of prescription applies,
the claim has
not prescribed.
[14]
It is against this construction that the applicants take
issue, and have now approached this court for intervention and to
provide
guidance on the proper interpretation on the two opposed
contentions.
[15]
As already shown, the period of prescription of debts is
governed by the provisions of Section 11 of the 1969
Prescription Act
which
stipulates as follows:
Section 11:
"The
periods of prescription of debts shall be the following:
Section
11(a):
"thirty years in respect of:
(i)
any debt secured by
mortgage bond,
(c)
six years in respect of a debt arising from a bill of exchange
or other negotiable instrument or from a
notarial
contract,
unless a longer period applies in respect of the
debt in question in terms of paragraph (a) or (b);
(d)
save where an Act of Parliament provides otherwise, three
years in respect of any
other debt
[16]
Having restated the periods of prescription of various debts,
the next logical question is when does prescription begin to run for
each debt? The position is regulated by the provisions of Section
12(1} of the Act which recites: Section 12(1):
"Subject
to the provisions of subsections(2), (3), and (4), prescription shall
commence to run as soon as the debt is due".
I
may however remark although, orbiter that in modem commercial
parlance, for prescription to begin to run, the debt must have been
due and payable.
[17]
Turning to the contentious issues in the present application
one needs to examine closely, the nature of and the type of the
secured
debt the respondent seeks to enforce in its claim in the main
action.
[18]
The
respondent's particulars of claim were formulated and attached to its
summons which was issued on 27
th
October
2010.
The
respondent's declaration dated 18
th
March
2011,
was delivered on the applicant's attorneys on 22
nd
March 2011. I shall, for the sake of convenience and brevity, refer
only to the relevant portion thereof to demonstrate the cause
of
debt, its source, and how it has been circumscribed in the
declaration.
[19]
In Paragraph 3 of
the declaration, the respondent alleged that the parties had entered
into a written loan agreement dated 25.05.1999
which agreement ought
to be read in conjunction with Section 34 of Act No. 13 of 1944
[3]
.
The said Act has currently been replaced by Act No. 15 of 2002
[4]
,
its successor-in-title. It appears from the Acceptance letter signed
on behalf of the applicants that the effective date was 31
st
May 1999, when the applicants accepted its terms and conditions.
[20]
The respondent had, in terms of the said loan agreement, lent
and advanced to the first applicant an amount of R250 000,00 for the
purposes of acquiring equipment for a humidity cold room. The loan
was repayable in five equal annual instalments of capital, together
with interest, the first instalment payable on the first due date
succeeding the date of the first payment under the loan.
[21]
As security for the loan, a Notarial Bond had to be registered
over the equipment to be purchased out of the proceeds of the loan,
and the second applicant, as the sole member of the first applicant,
was required to sign surety for the loan, presumably also
as a
co-principal debtor in the event the first applicant defaulted in its
contractual obligations.
[22]
A "Special Notarial Bond" as envisaged in the loan
agreement, was subsequently registered during 2000 by the Registrar
of Deeds under Protocol No. 828. I must, however, remark that there
appears conflicting registration dates
ex
facie
the registered notarial bond itself. The one date
appears as 20
th
July 2000 while the other was captured as
18.04.2000. The discrepancy, in my view, does not, however, alter the
position, which
at any rate is not in dispute.
[23]
The Special Notarial Bond, was registered under the provisions
of the Security by Means of Movable Property Act, 1993(captioned in
this judgment “the Securities Act 1993"). The purpose of
the said Notarial Bond, in short, was for the mortgagor to
pass the
bond in question over the movable property specified namely, the 8x
Nordis K air cooling systems, as security for the
due and proper
repayment of the loan capital advanced with interest thereon, and
furthermore, for the due and proper fulfilment
of all the terms and
conditions under which the advance was made to the mortgagor.
[24]
In consequence, the mortgagor would, upon the passing of the
said Special Notarial Bond, become indebted to the respondent, its
successor or assigns in the amount lent and advanced to it. The
bonded movables would then serve as security for the capital and
on
prescribed interest thereon.
It
was also a further term and condition that the Notarial Bond would
serve as a continuing covering security for all and any sum
or sums
of money which are now or may in future be owing to or claimable by
the respondent from the applicants, including future
debts generally,
under the Notarial Bond now under consideration.
[25]
In the event of default, for instance, failure by the
mortgagor(s) (applicants in this case) to pay any amount due and
payable under
the Notarial Bond so passed, or that the mortgagor(s)
having committed a breach of any term or condition thereof, then in
such
event, the respondent(mortgagee) would have the following
recourse available to it, namely:
(a)
To claim and recover from the applicants, the full capital
amount of indebtedness to the respondents,
(b)
To enter in and upon any of the premises in which the
applicants carries on business, and to take and retain possession as
pledge
all or any of the movable assets so secured or attached,
(c)
To take and retain possession of the movable assets and to
sell and alienate any of such secured movables either in terms of
Section
34 of Act 13 of 1944 or any other legal proceeding.
[26]
On careful consideration of the foregoing prerequisites, it
seems clear that the mortgagee, would not be in a perfect position to
exercise its right of retention and/or security over the encumbered
movables, not until it has "perfected" its claim
under the
bond.
I
propose to revert to the notion of “perfection"
later in the course of this Judgment This notion, without a doubt, is
peculiar in this context. Having said that, it then becomes necessary
to trace and find the origin and the meaning, if any, of
the concept
"mortgage bond" from our statute books and old authorities.
There are in our law, only four legislative enactments
in place in so
far as my memory can stretch, which makes reference to the concepts
of "mortgage bond", "notarial
contract", and
“notarial bond". None of these measures, in my view,
define quiet adequately the pure juridical
meaning to be assigned to
each for purposes of interpreting prescription of debts, I shall
briefly refer to them
seriatim
as follows:
26.1
The Insolvency
Act
[5]
,
which is even a much older piece of legislation, refers in Section
102, to the consequences of preference of secured claims proved
against an insolvent estate, which constitute a balance of the free
residue, where such claims were secured by a general mortgage
bond.
Again, this section does not offer any intelligible definition of the
concept "mortgage bond", for the purposes
of interpreting
extinctive prescription on debts of this nature.
26.2
The Deeds
Registries Act
[6]
("the
Deeds Act") which is also the pre-Republican era legislation,
refers in Section 102 thereof to a "mortgage
bond" as a
"bond attested by a notary public hypothecating movable property
generally or specially".[my own underlining)
The
same Act in Section 50(1), in relation to execution of bonds, refers
to a "mortgage bond" which shall be executed
in the
presence of the Registrar (of Deeds) by
the
owner of the immovable property therein described, or by a
conveyancer duly authorised and shall be attested by the Registrar.
Section
50(2), refers to a "mortgage bond” or "notarial bond"
which may be registered to secure an existing
debt or a future debt,
or both existing and future debts. Section 50(1) and 50(2), of the
Deeds Act, thus briefly refer to the
manner of execution of both the
immovable and movable assets, respectively, by either mortgage bond
or notarial bond, as the case
may be. This Act too does not provide
definition of what a "mortgage bond" in this context.
26.3
The
Prescription Act, 1969
, which is the cornerstone of the
law governing prescription of various kinds of debts, is relevant for
the purposes of determining
the dispute in the present instance. This
law, just like the two of its predecessors mentioned herein, makes
reference in Section
ll(a)(i) to prescription of debts to be 30 years
in respect of "any debt secured by "mortgage bond".
The Act in
its present form is, in that regard as silent as a stone,
offering no precise definition of the notion "mortgage bond"
for the purposes of how to compute the period of prescription of
debts of that nature.
26.4
The legislature in 1993 introduced the Security by Means of
Movable Property Act, which came into effect on 07
th
May
1993. Its preamble provides for the regulation of the legal
consequences of the registration of a “notarial bond"
over
specified movable property, and to exclude the operation of the
landlord's tacit hypothec in respect of certain movable property.
Once again, this Act does not provide guidance in terms of the
definition of "notarial bond", and the effect of
prescription
on the hypothecated corporeal movable property specified
in the bond.
[27]
The correct interpretation of the concept "special
notarial bond" within the confines of the Securities Act 1993,
is of
cardinal importance for the purposes of determining the issues
in contestation in the present application, and to locate the source
of liability or the debt as the case may be.
[28]
Before I approach the issues in dispute, I thought it apposite
if not necessary, to first review the divergent views expressed by
the modem commentators, and relevant case law authorities on this
topical subject-matter.
[29]
In Elliot, "The
South African Notary"
[7]
,
the learned author observed the notion as follows:
"(a)
The true mortgage bond, in the narrow sense of the word referring to
a real right of security in an immovable asset of
another which is
created by registration in the deeds registry by means of a bond
which must be prepared and executed before the
registrar of deeds by
a duly qualified conveyancer". As already seen, such a mortgage
bond, in order to be valid and effective,
shall be executed in the
presence of the Registrarfof Deeds) by the owner of the immovable
property therein described, or by a
conveyancer duly authorised by
such owner by power of attorney, and shall be attested by the
registrar. These ritual formulae are
found in Section 50(1) of the
Deeds Act 1937, and are pre-emptive in character as they appear to
be.
[30]
I again, in deference to the learned authors of "The
South African Notary" wish to refer to their characterisation of
real security wherein they particularly define a notarial bond in the
following language as:
"The
notarial bond being a general or special bond hypothecating a
specific movable asset, or all the movable assets of a debtor
and
registered in a deeds registry by the registry of deeds". This
characterisation of the hypothecated specified movable
property
accords, in my opinion, with the definition in Section 1 of the
Securities Act, 1993, The provisions thereof sound as
follows:
Section
1:
"If
a notarial bond hypothecating corporeal movable property specified
and described in the bond in a manner which renders
it that it will
be recognisable, is registered, after the commencement of this Act in
accordance with the Deeds Registries Act,
1937(Act 47 of 1937), such
property shall:
(a)
—
(b)
Notwithstanding the fact that it has not been delivered to the
mortgagee, be deemed to have been pledged to the mortgagee as
effectually
as if it had expressly been pledged and delivered to the
mortgagee".
[31]
From the language employed in both the Deeds Act, 1937 and the
Securities Act, 1993, it seems plain that a notarial bond which in
its nature, when executed or registered, hypothecates corporeal
movable property specified and described in the bond, cannot in
my
view, constitute a mortgage bond, and accordingly, prescription of
the debts secured by such divergent bonds, ought to differ
both in
effect and interpretation. I venture, to return to this proposition
later as I consider the distinctive characteristic
features thereof.
[32]
Contrary to this
view, other such writers as Prof. M.M Loubser in the work “Extinctive
Prescriptions, 1996
[8]
",
the learned author, after analysing the general principles of
extinctive prescriptions in our law, observed that the
Prescription
Act, 1969
does not distinguish between the different kinds of
mortgage bonds and submitted that the thirty-year period, therefore,
applies
to a debt secured by “any kind of mortgage bond",
including a special bond, a general covering bond, a collateral bond,
and a notarial bond.
[33]
I am unable to subscribe to the broad interpretation offered
by the learned writer for the following reasons:
33.1
The prescription periods in terms of which debts become
prescribed within the meaning of the 1969
Prescription Act are
, by
and large, set out in
Section 11
, which must be read in conjunction
with
Section 10
of the said Act. I have already referred extensively
to the relevant sections of the Act in paragraphs 8 and
9,
supra,
and I shall, therefore, refrain from quoting, once
again,
verbatim
from them.
33.2
In view of the fact that extinctive prescription begins to run
as and when the debt becomes due under Section 12 of the Act, where
a
mortgage bond is registered in respect of a debt, a period of
prescription applies to the debt concerned and not the mortgage
bond
itself. My opinion in this regard is fortified by the imperative
language expressed in the Section. The words "shall”
in
the Section imports a pre-emptive or restrictive method of
interpretation and excludes, therefore, any measure of discretion
to
justify deviation. In consequence, where a mortage bond is registered
after the due date of the debt, the usual prescriptive
period
applicable to that debt will apply (Section 11(d), until the
registration of the mortgage bond, when the 30-year period
will find
application. Accordingly, any period of prescription which has
already begun to run, for instance 2 years before registration
of the
bond, will be taken into account, and the prescriptive period, after
registration of the mortgage bond, will be a further
28-years period.
33.3
Furthermore, and with utmost respect to the learned author, no
reasons were advanced as to the writer's authority for an
all-inclusive
approach in which he held the view that the 30- year
period applies to a debt secured by
"any
kind of mortgage bond".
[34]
In his work
“Notarial Practice"
[9]
Professor F.E. Van der Merwe, gives a comprehensive analysis of the
special notarial bond, its legal effect, and that of the general
notarial bond. He also made brief reference to the adverse
consequences of the legaty left by the decision of the Appellate
Division
in
Cooper
N.O. v Die Meester en Sentraalwes (koop) Bpk
[10]
in terms of which it was held that a special notarial bond gives no
common law or statutory preference to a mortgage of a special
notarial bond over concurrent creditors in respect of the free
residue in the insolvent estate of the mortgagee. It was held further
that, a mortgage of a general bond does indeed enjoy preference over
concurrent creditors in respect of the free residue in the
insolvent
estate of the mortgager.
In
view of the “negative consequences" referred to by the
learned author, in his “Notarial Practice"
[11]
,
parliament subsequently promulgated the Securities Act, 1993,
referred to elsewhere herein.
[35]
In the light of the legislative amendment brought about by the
introduction of the Securities Act, 1993, one may safely conclude
that, in essence, the legal position that currently obtains is
analogous to the position that obtained in Natal. (Now Kwa-Zulu
Natal). The mortgagee now acquires real right over the movable
property after registration as if the property has been pledged
and
delivered to it.
[36]
The fact that the mortgagee is deemed to be in possession of
the property accordingly places his/her legal position on an equal
footing with that of a pledgee, and in the event of a dispute, the
mortgagee will have recourse to the ordinary principles relating
to a
pledge.
[37]
Having reviewed the writings of some of our eminent
commentators on the subject, I am inclined to lean in favour of the
proposition
that given the nature and character of a notarial bond,
it can only be registered over movable assets of a debtor. A general
notarial
bond does not, therefore, in the absence of attachment of
the property before insolvency, constitute the mortgagee as a secured
creditor of the mortgagor. It, therefore, grants to him/her a limited
statutory preference beyond the claims of concurrent creditors
in the
insolvent estate of the mortgagor.
Furthermore,
a special notarial bond is a mortgage created over specifically
enumerated corporeal (tangible) movable property of
a debtor
(mortgagor) in favour of a creditor (mortgagee), as security of a
debt or other obligation which is compliant with the
requisites set
out in the Securities Act 1993, and registered under the Deed
Registries Act.
[38]
Fortifying the aforementioned formulation, yet another distinguished
writer John Saner, in his work: "Prescription in South
African
Law"
[12]
submitted with reference to the three-year prescriptive period under
Section 11(d) of the Act, that the prescriptive period of
three years
applies in respect of "any other debt" not covered by the
rest of the provisions of Section 11 of the 1969
Prescription Act,
and
also not covered by "any other Act of Parliament". I
respectfully agree with this submission. I may just as well state,
in
addition that Section 11(d) applies to a debt which is not covered by
the provisions of Section 11(a); 11(b) and 11(c), respectively,
of
the Act.
[39]
I now proceed to examine briefly the legal position bequeathed
by our Courts on the subject, and to establish whether any of them
laid any sound legal basis for the correct or proper interpretation
of extinctive prescription on "mortgage bond'', "Special
Notarial Bond", and a "notarial contract", as the
concepts appear frequently in the statute books and our legal
precedents.
[40]
The Appellate Division (as it then was) in
LIEF
N.O.
v
DETTMANN.
[13]
per
Wessels
IA described a
"mortgage bond" as an instrument hypothecating landed
property to secure an existing debt or a future debt
or both existing
and future debts".
*
See also Section 50(2) of Act 47 of 1937 in this context.
Where
a bond is intended to secure an existing debt it is inevitable that
the amount of such debt should be acknowledged in the
bond, which
must be registrable in the Deeds Office.
[41]
The only real rights in favour of the mortgagee created by the
registration of the bond are rights in respect of the mortgaged
property, for instance, the right to restrain its alienation, and the
right to claim a preference in respect of its proceeds on
insolvency
of the mortgagor. These real rights, however, can only exist in
respect of a debt, existing or future, and it follows
that they
cannot be divorced from the debt secured by them.
That
having been said, it follows that the real rights under a bond are
immovable, but a debt is a movable one. Put differently,
Cession for
instance of real rights in land requires registration, but cession of
a debt under a bond, being an incorporeal movable,
requires no more
than an agreement to cede. The principles enunciated in the Dettman's
case,
supra
had since laid
down the legal nature and the effect of a mortgage bond hypothecating
landed property to secure an existing or future
debt
[42]
.
In
CONTRACT
FORWARDING fPTYl
LTD
v
CHESTERFIN fPTYl
LTD
&
OTHERS
[14]
,
the Supreme Court
of Appeal ("the SCA") expressed the principle that the
holder of a general notarial bond hypothecating
movable property,
does not enjoy a real right of security in the assets subject to the
bond. There is therefore, nothing to prevent
the owner from dealing
with and disposing of assets subject to the bond. The rights of the
bondholder are of importance mainly
upon insolvency. However, a
perfection clause, if applicable, entitles the bondholder to take
possession of the movables over which
the bond has been registered.
Such a clause amounts to an agreement to constitute a pledge
enforceable at the instance of the holder
of the bond.
[43]
, In one of the
matters that was heard in this Division recently, my Brother Rabie J,
had occasion to consider what the period of
prescription is in
respect of a debt secured by a Special Notarial Bond contemplated in
Section 1 of the Securities Act, 1993
[15]
.
The
facts at issue were two pronged namely,
43.1
Whether
the words "Mortgage bond" contained in Section ll(a)(i) of
the 1969
Prescription Act, also
included a reference to a Notarial
Mortgage Bond. If the Court were to answer in the affirmative, the
debts upon which the Plaintiffs
claims were founded, would be subject
to a period of prescription of 30 years, and the Plaintiff would
invariably then be successful
in respect of both its claims against
the Defendants.
43.2
If not, the second question arises, namely, whether the
defendant's debt could be said to be arising from a Notarial bond
within
the meaning of
Section 11(c)
of the said Act
In
such event, the period would be a 6-year prescription period, in
consequence whereof the plaintiffs claim in respect of the first
loan
would have become prescribed, although the latter claim in respect of
the subsidiary loan would only have been due and payable
to the
plaintiff.
[44]
It is common cause that the 1969
Prescription Act offers
no
definition of the concepts in question as the learned Judge
hascorrectly pointed out He however, observed in Paragraph 13 of
his
Judgment that:
"Although
it cannot be denied that in general parlance and amongst
practitioners, the phrase "mortgage bond" is more
often
than not referred to when immovable property is hypothecated, and the
phrase "notarial bond" is when movables are
hypothecated. I
could find no authority for the proposition that these phrases should
be so restricted in their interpretation.
In fact, the term "mortgage
bond” is often used to describe a "notarial bond".
[45]
I have, with the greatest of respect, an interpretation inimical to
that of the learned Judge. The reasons for my dissenting
view are
that, firstly, the
Deeds Registries Act 1937
, in
Section 102
defines
a Notarial Bond as a bond attested by a notary public hypothecating
movable property generally or specifically, while in
the same breath,
Section 50(1)
thereof relates to the manner in which execution of a
mortgage bond shall be performed by the owner of the immovable
property.
Such a mortgage cannot be equated to a notarial bond by
virtue of the variant assets bonded in them. Furthermore, a "mortgage
bond" which is also defined in
Section 102
of the
Deeds
Registries Act, entails
a bond attested by the register specially
hypothecating immovable property.
To
my mind, therefore, the intention of the law-giver was always to
maintain a distinction in respect of both character and the
general
purport of the two securities. The distinctive features of the two
legal concepts will become apparent in the course of
this judgment
[46]
The Court, as it appears from Paragraph 14 of the Judgment, seems to
have found refuge and drawn comfort from the submission made
by such
writers as Prof. M.M. Loubser "Extinctive Prescription", at
page 37 of his work quoted from the passage that:-
“
A
debt is secured by a mortgage bond upon registration of the bond The
Act does not distinguish between different kinds of mortgage
bond,
and the thirty-year period, therefore applies to a debt secured by
“any kind of mortgage bond", including a special
bond, a
general bond, a general covering bond, a collateral bond and a
notarial bond" (own under lining).
[47]
Although the Court remarked and correctly so, that none of the
authors whose work he has placed considerable reliance on, had
discussed the rationale behind their views on the attributes they
have assigned to the legal concepts referred to, the learned Judge,
maintained at Paragraph 15 of his Judgment, that:-
"a
research of present as well as earlier legislation referring to
mortgage bonds does not, in my view, detract from these
views".
No reasons were, however, given for the formulation, except for the
discussion of the procedures set out in the Deeds
Act, relating to
the execution of different types of bonds.
[48]
Section I of the
Insolvency Act, 1936
, as amended, defines in
relation to “
special
mortgage"
as:
“
special
mortgage":-
“
a
mortgage bond by hypothecating any immovable property or a notarial
mortgage bond hypothecating specially described movables in
terms of
Section I of the Security by Means of Movable Property Act 1993 or
such Notarial Mortgage Bond registered before 07 May
1993 in terms of
Section I of the Notarial Bonds (Natal) Act, 1932 (Act 18 of 1932),
but excludes any other mortgage bond hypothecating
movable property"
(my own underlining).
[49]
Turning to the present application, and the reasons sought for the
proposed amendment, the crux of the application is simply predicated
on grounds as follows:
49.1
The Respondent's claim is one for payment of the amount of
R491 203.05, together with interest thereon at the rate of 14% per
annum
from 31.08.2010 to date of payment capitalized monthly.
49.2
The claim against the First Defendant arose ex contractu
following its failure to make payment of each of the five instalments
that
became due and payable to the Plaintiff (respondent) under a
loan agreement, (“the loan agreement") concluded during
or
about May 1999.
49.3
Payment of the amounts said to be owing, due and payable to
the respondent under the loan agreement in respect of each of the
five
instalments that became due on the following dates:
(a)
15 June 2000 due date in respect of the first annual
instalment;
(b)
15 June 2001 due date in respect of the second annual
instalment;
(c)
15 June 2002, due date in respect of payment of the
third
annual instalment;
(d)
15 June 2003, due date in respect of payment of the
fourth
instalment;
(e)
15 June 2004, due date in respect of payment of the
fifth
instalment.
4.9.4
The Respondent's Summons was served on the Applicants on or
about 03 November 2010, being a period in excess of three years
computed
from the dates on which each of the debt(s) became due and
payable.
4.9.5
It
is on this basis that Applicants pleaded extinction of the debt(s) in
terms of Section 11(d) of the 1969
Prescription Act
4.9.6
The
Applicants pleaded in the alternative, to the aforegoing,
and to the extent that it is alleged that the claim against the
Applicants
arose from the "special notarial bond" attached
to the declaration, (which is denied) the Summons was served on or
about
03 November 2010, being the date more than six years from the
dates on which the alleged debt(s) arose.
It
was submitted on behalf of the Applicants, therefore, that the
Respondent's claim has prescribed in terms of
Section 11(c)
alternatively,
Section 11(d)
of the
Prescription Act, 1969
.
4.9.7
The Respondent's claim against the First Defendant having
prescribed, similarly, the subsidiaiy debt against the Second
Defendant
(Second Applicant) under the deed of suretyship, has
prescribed.
[50]
Opposing the intended amendment, the Respondent contended that the
claim has not yet become prescribed in terms of Section
11
(a)(i) of the
Prescription Act, 1969
due to the 30-year
premium attached to it. In order to determine the validity of this
argument, one has simply to examine the source
of the Applicants'
indebtedness to the Respondent, and trace its origin and character
from the particulars of its claim.
[51]
Reading from the particulars of claim, Paragraph 1, thereof, clearly
provides that:
"In
terms of a written offer dated 25 May 1999 by the Plaintiff to the
First Defendant, and accepted in writing by a duly authorized
representative of the First Defendant on 31 May 1999, an amount of
R250 000.00 was lent and advanced by Plaintiff to First Defendant
and
received by First Defendant: Copies of the Offer and Acceptance are
attached hereto and marked "A" and “B”.
[52]
In
Paragraph 2 thereof it is further stated:
“
The
amount thus lent and advanced by the Plaintiff to First Defendant,
taking into consideration interest levied and payments received
amounts to R491 203.05, which amount is to the offer referred to
above subject to interest of the rate of 14% per annum calculated
from 31 August 2010 to date of payment, the said interest to be
calculated and capitalized monthly”.
[53]
It
is also apparent from the reading of the same Paragraph 2, that the
Special Notarial Bond hypothecating the movable property,
which
served as continuing covering security, stipulated that:
“
in
the event of First Defendant failing to make regular payments to
Plaintiff in terms of the agreement referred to in Paragraph
1 above,
the plaintiff shall have the right to enter into the premises where
the movable property referred to above, may be found,
and to attach
the said movable property and to deal therewith in accordance with
the terms of Special Notarial Bond No. BN 24464/2000”.
[54]
Furthermore
Paragraph 5 recorded that:
“
The
agreement referred to in Paragraph 1 above
inter
alia
stipulates that should the First Defendant fail to make
regular payments in terms of the said agreement, the amounts due in
terms
of the said agreement, will immediately become due and
payable”.
[55]
From the stipulations aforementioned, which formed the genesis of the
Plaintiffs claim, it is abundantly clear that the claim was
one ex
contractu intrinsically connected to the “loan agreement”
concluded by the parties in or during May 1999. Needless
to say, the
Special Notarial Bond was subsequently registered during the year
2000.
[56]
This then raises another intriguing question. When did the loan
agreement repayment/s become due and payable to the Plaintiff,
if
indeed the First Defendant had fallen in mora in terms of its
obligations.
[57]
Applying
ordinary arithmetical exactitudes for the purposes of calculation of
extinctive prescription, the debt/s became due and
payable to the
Plaintiff between the period 15 June 2000 to 15 June 2004, if one
accepts the loan agreement and not the Special
Notarial Bond as the
source or origin of the Plaintiffs claim.
[58]
In order to decide on the question properly, it is imperative, I
propose, to first distinguish briefly the salient and distinctive
attributes of "mortgage bond" and a "notarial bond"
for the purposes of interpreting extinction of debts by
prescription
of the kind of debt which was intended by the parties to secure.
In
doing so, one need not begin to traverse outside the recently
unreported judgment delivered in this Division by Mabuse J on 20
December 2013
[16]
.
None of the parties had referred to this judgment during oral
argument, until further written heads of argument were called.
I
pause to remark that I am greatly indebted to Counsel for this
innovative finding.
[60]
In
this matter, Mabuse J was seized with an issue that conflated three
applications, one on rectification of a Loan Agreement, the
other for
liquidation of the Respondent in the matter, and finally that of
striking out of certain allegations in the founding
affidavit The
material facts in that matter are analogous to the dispute in the
present application. The Respondent in that case,
in opposing the
application for its liquidation invoked prescription of its debt as a
defence. The Applicant in the matter disputed
Respondent's contention
that the debt arising from the loan agreement had prescribed,
contending that the loan agreement was secured
by a special and
general notarial bond, and that as a result, the extinction period of
prescription in terms of section ll(a)(i)
of the prescription Act
1969, is 30 years. In the alternative, it relied on the provisions of
Section 11(c) of the Act, contending
that the 6 year prescription
period applies in respect of bonds attested by a notary such as
notarial contracts, but which were
not passed over immovable
property. It thus submitted that the debt had not become
extinguished.
(61)
Having analysed the
relevant provisions of Section 11 (a) (i) of the 1969
Prescription
Act in
respect of mortgage bonds,
Section 50
(1) and
102
of the
Deeds
Registries Act 1937
, Section 1 of the Securities Act, 1993, and
writers on the subject, the learned judge held, and correctly so,
that:
[17]
“It is clear that a mortgage bond is not a notarial bond. The
main attribute of a mortgage bond, and which is lacking in
a notarial
bond, is the immovable property. Simply put, in a mortgage bond the
property hypothecated is an immovable property,
whereas in so far as
it concerns the notarial bond, the property involved is a movable
property. Accordingly, the period of 30
years does not apply to the
notarial bond because it is not a mortgage bond. I accept though that
in terms of Section 11 (b), if
it be proved that the debt arises from
a notarial contract, the applicable period of prescription is six (6)
years."
I
find merit in this formulation, which in my view, represents a
positive development towards our jurisprudence on this aspect,
which
was for many decades, not well coagulated by the courts of the land.
[62]
In the present instance, Counsel for respondent submitted that
the Plaintiff s claim is founded upon a loan agreement secured by
a
“special bond”.
Although
the applicants admitted these allegations in their Plea, that
admission
per se
does not
negate the question from which source was the debt originating. Was
it from the loan agreement or from the notarial bond
which was
registered only in 2000.
[63]
Reading from the respondent's particulars of claim as
amplified in its declaration, it follows that the nucleus of its
claim is
founded upon the money lent and advanced to the applicant by
the respondent in terms of the loan agreement This view is fortified
by what is contained even in the special notarial bond itself.
[64]
To that extent, the submission advanced on behalf of the
respondent that because the debt is sourced by mortgage bond and
therefore,
the relevant prescription period is thirty years is, with
respect, based on wrong premise.
[65]
Counsel for the
respondent conceded in paragraph 2.4 of its heads of argument
that:
[18]
"Although
the cause of action is a loan agreement, the special notarial bond
serves as security for the debt The debt is therefore,
secured by
mortgage bond". This contention is not only misplaced, but is
also untenable .The loan agreement, and not the notarial
bond, is to
my mind, the source of the debt.
[66]
I have intimated elsewhere in the course of this judgment ad
paragraph 26, in particular, about the requirement of "perfection"
of certain movable property secured by notarial bond. In case of a
general notarial bond, the creditor does not obtain a real right
of
security when possession is taken of the movables over which the bond
has been registered. Such bond do not generally fall within
the
purview of the Securities Act 1993. In
Cherstein
Ptv Ltd & other's case, supra
. it was said that:
"A
perfection clause entitles the holder of the bond to take possession
of the movables over which the bond has been registered.
Such a
clause amounts to an agreement to constitute a pledge and will be
enforced at the instance of the bondholder, whereupon
the creditor
obtains a real right of security”
[67]
In the present instance, counsel for respondent did not argue
in its heads, that the respondent had indeed entered in and upon all
or any of the premises in which the applicant carries on business,
and to take possession as a pledge or all or any of the movable
assets, as it had set apart the right in the notarial bond, the so
called perfection clause. In the absence of such an assertion
Counsel
can hardly be heard to argue, therefore, that the special notarial
bond is an instrument that gives rise to a real right
of security if
no case for perfection had been made. There is no evidence to support
the view that the notarial bond has ever been
perfected.
[68]
Be that as it may,
it is necessary if not essential to trace the source of the debt in
order to interpret properly the prescription
period applicable. If
find refuge in this regard from the passage extracted from the
judgment of Rose-Innes J where he stated
[19]
:
"a
general notarial bond comes into existence pursuant to an agreement
between the creditor and a debtor to hypothecate movable
property as
security for a bond, as it is called, to create a
jus
ad rem
with a right to a general preference for payment of the
principal debt upon insolvency of the debtor occurring the cause of
action
is the failure to comply with the terms of the principle
agreement recorded in the bond as to repayment of the capital and
interest
of the loan. That cause of action is upon the principal
contract of loan to which the rights created by the bond are but
accessory
and
ad securitatem debiti.
The
Creditor cannot claim on a bond, unless there is a valid obligation
and debt due to him
de hors
the bond. There can be no settlement or payment of the bond in
isolation of and without settlement or payment of the principal
obligation acknowledged in the bond. Here that obligation is a loan."
[69]
In order to trace the roots of the source of the debt upon
which the respondent relies, it is incumbent for one to merely
examine
the
causa
for the
recovery action instituted, and for what kind of debt respondent
seeks to pursue.
In
the present instance, Paragraphs 1 and 5 of the respondent's
particulars of claim referred to , clearly make reference to the
money lent and advanced in terms of an agreement of loan which if
breached, the money "will immediately become due and payable".
[70]
This then raises another issue. When did payment or the debt
become due and payable in terms of the loan agreement? In terms of
paragraph 3 (3.2 to 3.6) of the declaration, it is plain that the
loan agreement was concluded by the parties during or about May
1999.
Counsel
for the applicants submitted that payment of the amounts owing to
respondents under the loan agreement in respect of each
of the five
instalments became due and payable from 15
th
June
2000
to 15
th
June 2004. If one accepts this computation as
correct, it is plain that the respondent's claim has prescribed in
terms of Section
11(d) of the 1969
Prescription Act.
[71
]
It was also submitted on behalf of the Applicants in the
alternative, that to the extent that it is alleged that the claim
against
the first applicant arose from a special notarial bond
attached to the declaration marked "D", the summons was
only served
on or about the 03
rd
November 2010, being a
period in excess of six years from the dates on which the debts
became due and payable. Accordingly, the
debts were extinguished by
prescription under
Section 11
(c) of the relevant Act.
[72]
On account of the prescription of the principal debt in
respect of the first applicant, the indebtedness of the Second
Applicant
under the deed of suretyship had similarly fallen away.
[73]
From the observation made, it follows logically that the debt
on which the respondent relies, has its origin in the loan agreement.
It is patently clear that the respondent's claim is the applicant's
failure to perform positively in terms of the loan agreement
which is
the
vinculum juris
giving
rise to the obligation.
[74]
In view of the fact that the debt did not flow from the
notarial bond, but from the loan contract, it became due and payable
betweenlS*
June 2000 to 15
th
June 2004. The prescription
period that applies to it was, therefore, three years in terms of
Section 11
(d)
and six years in terms of Section 11c, as the case may be.
74.1
The Supreme Court of Appeal in RUSTENBURG PLATINUM MINES LTD V
INDUSTRIAL MAINTENANCE PAINTING
SERVICES
CC[CASE NO: 448/2007 delivered on 23.09.2008, neutral citation,
[2008] ZA SCA 108]
in dealing with prescription of debts (para: 11)
Mpati JA stated that the word "debt" does not refer to the
“cause
of action", but more generally to "the claim".
The
"cause of action", in my opinion, is ordinarily used to
describe the factual basis, and the set of material facts
that begets
the plaintiffs particulars of claim, and correspondently, the
defendant's "debt", the word we find in the
1969
Prescription Act. The
Court went on to state that it should,
therefore, be fairly clear that when the
Prescription Act, speaks
of
a "debt", it refers more generally to a "claim",
and not the cause of action.
74.2
In the present application, it admits of no doubt, therefore,
that the respondent's "claim" against the applicants
originated
from the loan agreement, which invariably gave rise to the
"debt" sought to be recovered. The time frame within which
the claim should have been instituted, had clearly become prescribed
in terms of
Section 11(d)
of the
Prescription Act, 1969
.
[75]
It follows that once the debt has become prescribed, the
respondent ceased to be a creditor of the applicants.
[76]
Given
the provisions of the special notarial bond registered later in 2000
to secure the loan , it is clear that the source applicants
indebtedness to respondent was the loan agreement per se, and not the
notarial bond. This assertion can even be inferred from the
language
contained in paragraphs 8 and 9 of the declaration which states that:
76.1
Paragraph 8:
"On
31
st
August 2010, First Defendant was still indebted to
the Plaintiff in respect of the loan agreement
“........................
and Paragraph 9 states:
76.2
Paragraph 9:
"The
loan agreement referred to above is in terms of
Section 52
(1) of Act
15 of 2002, valid and enforceable, despite the repeal of the Land
Bank Act 33 of 1944."
[77]
The special notarial bond states in Part A to its preamble
that:
"The
appearer declared that the mortgager is indebted to the Bank, its
successor or assigns in the amount of R250 000,00 arising
from money
lent and advanced by the Bank to the mortgager".
[78]
From the reading of other clauses of the notarial bond, one
cannot reasonably conclude that it professed to serve as the source
of the applicant's indebtedness, the more so that it was preceded by
the loan agreement by more than twelve months before its
registration.
[79]
Having had regard to the provisions of Sections 11 (a)(i) and
11 (c ) of the Act it is important to note that the wording in the
two sections is crucial. It is accordingly not necessary in terms of
Section 11 (a) (i] that the mortgage bond should be the origin
of the
debt before the indebtedness of the mortgager to a mortgagee may
arise. The mortgage bond on its own gives rise to an autonomous
origin of the debt, and consequently an independent cause of action
or debt.
[80]
In view of the fact that no amount of money was lent and
advanced to the applicants on the basis of a notarial bond, which at
any
rate was registered
ex post
facto
the loan agreement, it can hardly be said that the
notarial bond formed the source or origin of the debt. In other
words, a notarial
bond cannot be regarded as the origin of the debt
where no money or loan was advanced on its basis, or if it evinces a
totally
independent source of liability.
[81]
I am firm in my view, therefore, that the differentiation of
the legal nature between a “notarial bond” and a
"mortgage
bond” with reference to prescription of debts,
should always be emphasised. This approach, I thought, accords with
the provisions
of the
Deeds Registries Act, 1937
, read in conjunction
with the Securities Act, 1993. These are two crucial statutory
instruments ever passed by the lawmaker in
the last century on the
subject.
[82]
The
dictum
of Rabie}
in the unreported judgment of
Boeke's
case
supra, (footnote 15 p.22)did not, with utmost respect,
pay due attention differentiating the two Acts referred to for
purposes of
interpretation of
section 11
of the
Prescription Act,
1969
.
[83]
In fact, the
inference the learned Judge has drawn to the effect that the
legislature intended to include notarial mortgage bonds
in the
reference to “mortgage bond* in section 11 of the Act, should
with respect, not be followed. To do so would be to
offend the
presumption of the interpretation of statutes that in interpreting
legislation, the assumption is that the lawgiver
did not intend to
either repeal or modify the earlier statute
[20]
.
Accordingly, when interpreting
Section 11
(a) (i) of the
Prescription
Act, 1969
, the differentiation drawn by the earlier
Deeds Registries
Act 1937
[21]
and
the
Insolvency Act, should
at all times be borne in mind. An attempt
should therefore, be made to interpret the earlier statute and the
later one together,
and reconcile the two measures
[22]
where feasible.
[84]
The approach adopted in
Absa
bank Ltd V HAMMERLE Groutj fPtv
)
Ltd.
supra,
(footnote 16,p.30)is the preferred one, and I am rather
compelled to follow it for the purposes of the present application.
[85]
I shall now, for the sake of convenience and brevity,
recapture the broad principles governing the amendment of pleadings
within
the confines of Rule 28 (4) of the Uniform Rules of Court.
[86]
It was submitted on behalf of the Respondent that the
application brought by the applicants was for dilatory purposes and
lacks
bonafides.
Relying on
the principle that:
"
Save in exceptional cases where the balance of convenience or some
such reason might render another course desirable, an
amendment ought
not to be allowed where its introduction into the pleading would
render such excipiable
[23]
".
I pass now to consider whether the amendment sought to be
incorporated would render the amended Plea excipiable.
[87]
Having found that the notarial bond referred to was not a
mortgage bond and vice versa, it follows in my view that the 30 year
period
of prescription does not apply to a debt of this nature. The
money lent and advanced in the form of a loan, being the main source
of the debt, and not the notarial bond, was extinguished by operation
of prescription in terms of
Section 11
(d)
of the
Prescription Act
, 1969. That being the position, it
follows that the amendment sought, would disclose a defence in law,
and it cannot therefore
be said if allowed to stand, it would render
the plea excipiable.
[88]
The next enquiry is
whether will the respondent be prejudiced if the amendment were
allowed to stand, and whether was it not bad
in law.
[24]
In the present instance, this court has already made a determination
on the question of law raised in terms of
Rule 6
(5)
(d)
(iii) of the Rules.
[89]
I am of the opinion that neither is the amendment sought bad
in law nor would it occassion any prejudice on the part of the
respondent.
Both parties will at any rate still vent out their
dispute before this court in due course.
[90]
It was submitted further on behalf of the respondent that
applicants must show
prima facie
that they had something deserving of consideration, a triable issue.
A triable issue is a dispute which if proved on the basis
of the
evidence foreshadowed by the applicant in the application, will not
be innocuous, albeit a dispute which will probably be
established by
the evidence thus foreshadowed.
[91]
In deciding whether to grant or refuse an application for an
amendment, the court exercises a discretion, and in doing so, leans
in favour of granting it in order to ensure that justice is served by
deciding the real issues between the parties.
[92]
The special plea raised, in my view, is capable of raising a
triable issue. The real issue in this case would be whether the
respondent's
claim has not prescribed , and if not whether are
applicants liable to repay the debt claimed.
[93]
Furthermore, the
court has discretion to permit an amendment even at a late stage, if
it leads to a proper ventilation of the dispute
and if it does not
occasion an injustice to the opposing party which cannot be remedied
by an appropriate costs order
[25]
.
[94]
In an application where an objection based on prescription is
raised, it is useful to identify the debt or ascertain what the claim
was in the broad sense of the meaning of that word. The test is one
of substance, and not form, whether or not the "debt"
is
the same or different.
[95]
In the light of the aforegoing considerations, and bearing in
mind the issues raised, I come to the conclusion that there exists
no
real impediment why an amendment should not be permitted introducing
the Special Plea of Prescription. Such an amendment, would
in my view
not be excepiable as disclosing no valid defence.
I
accordingly, do not hesitate to grant the application sought,
and it is hereby granted. I, therefore, make the following Order:
COURT
ORDER:
1.
The Applicants ("defendants in the main action”)
are hereby granted leave to amend the Plea dated 19
th
April 2011, through the introduction of the Special plea formulated
in the Notice in terms of Rule 28 (1) of the Uniform Rules
of Court.
2.
The Applicants are ordered to deliver and file their amended
pages within ten (10) days from the granting of this order.
3.
The costs of application are costs in the cause.
M.G
PHATUDI
ACTING
JUDGE OF THE GAUTENG HIGH COURT
PRETORIA
APPEARANCES:
Counsel
for Applicants: Adv. C. BESTER Instructed by:
ISMAIL AYOB & PARTNERS
SOPHIE
DE BRUYN & PRETORIUS STREET PRETORIA, 0002 TEL: (012) 335 1138
Counsel
for Respondent: Adv. B. BERGENTHUIN SC
Instructed
by:
VAN ZYL LE ROUX ATTORNEYS
MONUMENT
PARK PRETORIA
0002
TEL:
(012) 435 9444 Dated Heard:
25
th
March 2014
Date
of Judgment:
20
th
May 2014
[1]
Act
68 of 1969
[2]
Act
57 of 1993
[3]
The Land Bank Act, 1944(now repealed)
[4]
The
Land and Agricultural Development Bank Act, 2002
[5]
Act
No. 24 of 1936
[6]
Act 47 of 1937
[7]
06
th
Edition, at p.146 et seq.
[8]
Paragraph 3.1 at p.35-37, See also para 3.2 at p.37
[9]
Butterworths 2007, p. 165-166
[10]
1992(3)
SA 60(A) and 1992(3) SA 868(A) respectively
[11]
At page 116 thereof
[12]
Service Issue 20.09.2013. Pp3 - 43
[13]
1964(2)
ALL SA 448 (A) (Parallel citation 1964 (2) SA 252(A)
[14]
2003(2) SA 2S3 (SCA)
[15]
Land & Agricultural Development Bank of South Africa v A Boeke &
Another (Unreported Case NO.
12506/2007)
delivered on 17.02.2011
[16]
Absa Bank Ltd v Hammerle Group (Pty) Ltd- Case No. 7457/2013 ZAGPPHC
402
[17]
At Paragraph 27
[18]
17
Paragraph 2,2, Paragraph: 3.1 to 3.6 of Plaintiffs Heads of argument
in respect to leave to amend
[19]
Coloured development corporation Ltd v Sahabodien
1981 (1) SA 868
(CPD) at 870A-D
[20]
Kent V SA Railways & harborours 1946 405 (AD)
[21]
Section 50(2} of the Act real with Section 1 of Insolven
[22]
Wendywood Development (Pty) Ltd V Rieger 1971 (3) SA28(A)
[23]
Cross v Ferreira 1950(3) SA 443 C at 450
[24]
Krische V RAF 2008 (4) SA 358 (WLD)
[25]
Kasper V Andre Kemp Boerdery CC
2012 (3) SA 20
(WCC)