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[2013] ZAFSHC 227
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Uys N.O. and Others v VKB Landbou Limited and Another , In Re; VKB Landbou Limited v Uys N.O. and Another (2180/2013) [2013] ZAFSHC 227 (5 December 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 2180/2013
In
the matter between:
NICOLAAS
PETRUS UYS N.O.
….........................................................................
First Applicant
STEPHANUS
SOLOMON WEYERS N.O.
…....................................................
Second
Applicant
(In
their capacity as trustees of the N & J Trust,
IT[…])
NICOLAAS
PETRUS UYS
…..................................................................................
Third
Applicant
and
VKB
LANDBOU LIMITED
…...............................................................................
First
Respondent
THOMAS
AUCTIONEERS
…............................................................................
Second
Respondent
In
re:
VKB
LANDBOU LIMITED
…
..........................................................................................
Applicant
and
NICOLAAS
PETRUS UYS
…................................................................................
First
Respondent
STEPHANUS
SOLOMON WEYERS N.O.
…..................................................
Second
Respondent
(In
their capacity as trustees of the N & J Trust,
IT
[…]
HEARD
ON:
18 NOVEMBER 2013
JUDGMENT
BY:
RAMPAI, AJP
DELIVERED
ON:
5 DECEMBER 2013
[1]
The applicants apply for leave to appeal against the whole of the
judgment and the order I granted on the 18
th
June 2013 with reasons I furnished on the 27
th
August 2013.
[2]
The applicants’ main application to interdict the selling of
the farms of the first and the second respondents, in other
words,
the trust, was dismissed with costs. On the same papers I then
granted the first respondent’s conditional counter-application
for, among others, judgment for the payment of the two claims and I
declared the farms executable. I then ordered the applicants
to
pay the costs of the proceedings.
[3]
In my view this application for leave to appeal is but yet another
mala fide
ploy to delay payment. As I have pointed out in the judgment
the trust has virtually no defence against the claims of the
first
respondent. The trust consented to judgment. In good
faith I granted the trust a further indulgence of ten weeks
until the
31
st
August 2013 to raise funds in order to pay the claims of the first
respondent. That indulgence was a futile exercise.
[4]
Since the 31
st
August 2013 a further three months period has subsequently lapsed.
The delay was occasioned by this further application for
leave to
appeal filed by the applicants. To date hereof no payment
whatsoever has been made by the applicants to settle the
amounts
owing to the first respondent.
[5]
In
Rutherford v Ferguson and Another
(Standard Bank of SA Bpk intervening)
1998 (4) SA 90
(OPD) at 92I – 93A this court held per Pretorius
AJ:
“
Die
vraag of verlof om te appelleer toegestaan behoort te word moet
judisieel benader word en is nie 'n geval van 'n blote formaliteit
nie. Vereistes waaraan onder andere voldoen moet word is die
volgende:
(a) Applikant moes
die Hof tevrede stel dat hy redelike vooruitsigte van sukses het op
appèl.
(b) Die
aangeleentheid van wesenlike belang is vir die appellant of vir beide
die applikant en die respondent.
Vide
R v Baloi
1949 (1) SA 523
(A) te 524;
Van Heerden v Cronwright and Others
1985 (2) SA 342
(T) te 343F--G;
United Plant Hire (Pty) Ltd v
Hills and Others
1976 (1) SA 717
(A) te 720E--G.
Die volgende
opmerking in die
United Plant Hire
-saak (te 720F--G) is ook
relevant in die onderhawige aangeleentheid, naamlik:
'These
factors are not individually decisive but are interrelated and must
be weighed one against the other;. . . .'”
See
also
Van Heerden v Cronwright and
Others
1985 (2) SA 342
(TPD) at
343C – J.
[6]
I do not propose to deal comprehensively with the grounds of appeal
on which the applicants rely. My views as regards this matter
are
fully set out in my judgment.
[7]
This application, just as the main application, is an abortive
attempt to delay the inevitable. The crux of the matter
is that
the trust is unable to pay its debts. It is so that the trust
was facing liquidation proceedings at the time it consented
to
judgment. It may well be so that there were certain procedural
blemishes leading up to the declaration of the trust property
as
executable. There may also be some procedural defects in the
manner I dealt with the matter on the way leading up to the
judgment
I granted. All these discrepancies notwithstanding, in the
final analysis a debtor consenting to judgment should
by virtue of
such consent be precluded from escaping the agreed consequences
thereof.
[8]
Even if the first respondent were to abandon this judgment, rewind
the clock and institute action afresh against the applicants,
the
ultimate fate of the applicants would still remain the same as it is
now. Nothing ………… change,
however
perfect the procedure may be in my view the procedural defects
complained of are totally eclipsed by the substantive merits
of the
case against the trust. No procedure, however clean and
regular, can salvage the trust from its indebtedness.
[9]
Now I turn to the alleged lack of judicial supervision of the sale of
immovable trust property. The trust had unconditionally
consented to such sale and confirmed that such sale would not in any
way infringe any rights to adequate housing. Such consent
served in an open court on the 14
th
February 2013 before my brother Kruger J. Therefore the trust
had ample opportunity to raise the issue of the adverse impact
of the
sale on anyone’s rise to adequate housing in an open court.
On behalf of the trust the applicants did the very
opposite.
They informed Kruger J that the question of rights to adequate
housing was a non-issue which required no further
judicial
supervision. On that day the trust had the golden opportunity
to protect itself against the respondents’ claim
to sell the
farm(s) on which they reside. Since the question of adequate
rights was not an issue, judicial supervision was
uncalled for.
The applicants themselves deleted the item from the agenda.
Therefore, they no longer have any reason
to complain about lack of
judicial oversight anymore.
[00]
As I pointed out in my judgment the third applicant had been a
signatory to those consent orders. He is likewise precluded
from raising any issue of rights to adequate housing. The
argument of Mr Grobler before me to the effect that the issue was
not
properly ventilated, failed to impress me. The hard facts of
the matter clearly show that the applicants cannot have
a second bite
of the cherry. Neither before Kruger J nor before me did they
make any attempt to ventilate the issue in order
to persuade any one
of us to exercise judicial supervision otherwise than we did.
In this instance proper judicial supervision
was exercised not once
but twice with the express consent of the applicants. They
assumed the two of us, on two separate
occasions, that there would be
no adverse impact on such ………..
[9]
The contention of the applicants, as regards urgency, was neither
here nor there. The auction had been arranged.
The sale
of the farms had been extensively advertised. The application
of the trust to stay the sale was urgent. Therefore
the
counter-application was also urgent for the very same reasons on
which the applicants relief was based for the urgency of the
main
application. The applicants have, on behalf of the trust, been
playing games for a considerable period of time knowing
fully well
that they have no valid defence. The applicants are clearly
clutching onto straws. To grant this application
would
encourage the serious and lamentable abuse of the court processes.
The first respondent believed, and in my view correctly
so, that it
was time to put an end to the abuse. It is now time the matter
is put to rest once and for all.
[10]
As regards the applicability of Rule 46, it must be borne in mind
that the intended sale by private auction had been agreed
upon by the
parties and made an order of court by agreement
inter partes
.
Such an agreement to a private auction, contained in a settlement
agreement and made an order of the court, is binding,
valid,
enforceable and not contrary to public policy. It was certainly
not
parate executie
without recourse to the court processes –
vide
Citibank NA v Thandroyen Fruit Wholesalers CC and
Others
2007 (6) SA 110
(SCA) par [13] at 115H – 116E.
[12]
Indeed Mr Pretorius, counsel for the first respondent, was correct
when he said the counter-application was the death-knell
of the
application for leave to appeal. The truth of the matter is
that the trust has no prospects of success, as regards
the main
application. Absent such prospects of success, any success
concerning this application for leave to appeal would
be of no
consequences. The merits of the counter application are
formidable. The trust and its trustees simply cannot
run away
from the truth of this matter. Let me put this point
differently. Even if the applicants should successfully
appeal
against my decision, whereby I dismissed the main application, the
force of the counter-application would still be fatally
powerful for
the applicants to survive. In my judgment I found that all the
requirements for such an order were convincing
established.
[13]
In the circumstances I am not persuaded that any reasonable prospect
exists that another court would, on the facts, not have
granted such
a judgment for the payment and for the declaration of the farms as
executable property.
[14]
A similar counter-application was lodged in
Citibank
,
supra
.
In that case the counter application was granted. Probably the
same outcome can be expected should the applicants
apply for
rescission of the judgment. In this instance the
counter-application would probably be granted due to the refusal
of
the trust to abide by the order of Kruger J without any need to make
reference to an appeal or review. I fail to understand
how any
court could possibly decline to grant judgment in favour of the first
respondent merely because the trust consented to
judgment during the
course of liquidation proceedings. In my view the context in
which the consent was given, has in no way
tainted the due process
leading up to the declaration of the trust property as executable and
the allowing agreed sale by private
auction.
[15]
I have to stress that the first respondent has been struggling to
enforce payment of a substantial claim for more than three
years.
If leave to appeal were to be granted to the trust in these
circumstances, it would be tantamount to a serious abuse
of our civil
justice system. The trust owes the first respondent a
substantial amount of money. The trust, by its own
admission,
has put up no defence to such a claim. In these circumstances I
am indeed persuaded by Mr Pretorius’ argument
that the trust
should be denied leave to appeal. To do otherwise, would
certainly tarnish the integrity of the processes,
procedures and
practices of our system.
[16]
As I say it, there are no reasonable prospects of another court
coming to a different conclusion. It is now high time
that the
trust no longer be allowed to avoid its contractual obligations as it
has done so far.
[17]
Accordingly I make the following order:
17.1 The application
of the trust for leave to appeal is dismissed.
17.2 The applicants
are directed to pay the costs of this application on the special
scale of costs as between attorney and client.
________________
M.H.RAMPAI,
AJP
On
behalf of applicants: Adv S. Grobler
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv J.J. Pretorius
Instructed
by:
Christo
Dippenaar Attorneys
BLOEMFONTEIN