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[2014] ZAGPPHC 511
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Land and Agricultural Development Bank of South Africa v Factoprops 1052 cc and Another (64702/2010) [2014] ZAGPPHC 511; [2015] 3 All SA 319 (GP) (20 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
Case No. 64702/2010
Date: 20 May 2014
Reportable
Of interest to
other judges
In the matter
between:
Land and
Agricultural Development
Bank
........................................................................................
Plaintiff
of South Africa
and
Factaprops 1052
cc
...................................................................................................................
First
Defendant
Ismail Ebrahim
Darsot
.........................................................................................................
Second
Defendant
FLY NOTE:
Practice -
pleadings-Amendmentof 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.
JUDGMENT
PHATUDI AJ:
INTRODUCTION:
[1.]
The dispute in this matter presents not only a vexed question whether
a special Notarial Bond("notariaI bond") could
be construed
as a mortgage bond within the meaning of
Section 11(a)(1)
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 ll(a)(i) 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
Section 10
(1)
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 ll(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 modern 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 11(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
modern 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 Registrar(of
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,
supr
a,
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 "
shal
l”
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 legacy left by the decision of the Appellate
Division
in
Cooper
N.O. v Die Meester en
Sentraalwes
(koóp) 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
JA
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
(
PTY
)
LTD
v CHESTERFIN (PTY)
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
ll[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
"
anv
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 subsidiary 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
ll(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
Pty 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
ll(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:ll) 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 correspondent^, 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) ofAct 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 J 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 Group
(Pty)
Ltd, supra,
ffootnote
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
bona
fides
.
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: 5
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 253 (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)