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[2014] ZAFSHC 187
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Investic Bank Limited and Another v Louw N.O. and Others (4793/2012) [2014] ZAFSHC 187 (13 November 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 4793/2012
In
the matter between:-
INVESTIC
BANK LIMITED
….........................................................................................
1
st
Applicant
ROUTLEDGE
MODISE INC
….......................................................................................
2
nd
Applicant
and
ANDRIES
NICOLAAS EVERHARDUS LOUW N.O.
…............................................
1
st
Respondent
RUSTU
GUVEN ATALA N.O.
…...................................................................................
2
nd
Respondent
CARL
BOTHMA N.O.
….................................................................................................
3
rd
Respondent
LEON
WESSELS N.O.
…................................................................................................
4
th
Respondent
JUDGMENT
BY:
VAN
DER MERWE, J
HEARD
ON:
7
NOVEMBER 2014
DELIVERED
ON:
13
NOVEMBER 2014
[1]
These are applications for leave to appeal against the judgment
delivered in this matter on 21 July 2014. It is convenient to
refer
to the relevant parties as in the judgment and to make use of the
same terminology. The applications are made by Investec
and
Routledges. The question is whether Investec and/or Routledges have
shown a reasonable prospect of success on appeal.
[2]
Only two points were argued in respect of the applications for leave
to appeal. Both Investec and Routledges submit that
there is a
reasonable possibility that another court may conclude that
non-compliance with section 118(3) of Act 61 of 1973 should
be
visited with nullity. The contention that there is a reasonable
prospect of a finding on appeal that the debenture bond
is invalid
for lack of authority to have it registered, is only advanced by
Routledges.
[3]
I do not think that there is a reasonable prospect of success on
appeal on the issue of authority to execute the debenture bond.
It is common cause that the name of Mr Van Blerk had been inserted in
the power of attorney to register the debenture bond in terms
of a
practice followed in the deeds registries at the time. The gist
of the present argument is that this practice was “legally
incorrect” and had for that reason subsequently been revoked.
But as I see it, this question is irrelevant. The
acceptability
or otherwise of this practice was not raised in Routlegdes’
answering affidavit. What was raised, in
the answering
affidavit of Investec, was something completely different, namely the
possibility that Mr Van Blerk was not authorised
to execute the
debenture bond at all. This possibility was however ruled out
by the undisputed evidence of Ms De Lange that
in terms of the power
of substitution granted to him, Mr Goosen as a fact nominated Mr Van
Blerk, amongst others to execute the
debenture bond.
[4]
In the final analysis the argument that section 118(3) is peremptory,
is based thereon that non-compliance will inconvenience
interested
parties. But the indications to the contrary so outweigh this
consideration that I am not persuaded that there
is a reasonable
prospect of success on this point.
[5]
In the result the applications must be dismissed with costs. It
was not argued that the employment of two counsel was
unjustified.
[6]
The applications for leave to appeal of the first and second
applicants are dismissed with costs, including the costs of two
counsel.
_________________________
C.
H. G. VAN DER MERWE, J
On
behalf of the 1
st
applicant: Adv. G. W. Woodland SC
Instructed
by:
Matsepes
Inc.
BLOEMFONTEIN
On
behalf of the 2
nd
applicant: Adv. G. B. Rome
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of respondents: Adv. A. P. Joubert SC
With
him: Adv. G. P. van Rhyn
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN