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[2012] ZAFSHC 216
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Odendaal and Others v Burger NO and Others (3234/2012) [2012] ZAFSHC 216 (22 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3234/2012
In the matter between:-
MARTHINUS PETRUS
ODENDAAL
......................
1
st
Applicant/Plaintiff
AVELING N.O.
LIZMA AVELING N.O.
............................................
2
nd
Applicant/Plaintiff
GERT JACOBUS VAN
NIEKERK N.O.
..................
3
rd
Applicant/Plaintiff
and
MICHIEL DANIëL
BURGER N.O.
..................
1
st
Respondent/Defendant
CAROLINA JOHANNA
BURGER N.O.
........
2
nd
Respondent/Defendant
ANDRIES VENTER N.O.
.
..............................
3
rd
Respondent/Defendant
MICHIEL DANIëL
BURGER
..........................
4
th
Respondent/Defendant
_____________________________________________________
HEARD
ON:
8 NOVEMBER 2012
_____________________________________________________
JUDGMENT
BY:
EBRAHIM, J
_____________________________________________________
DELIVERED
ON:
22 NOVEMBER 2012
_____________________________________________________
[1] This is an
application for summary judgment brought by the three plaintiffs,
who, in their capacities as trustees of the Mpola
Trust, have
instituted action against the defendants, jointly and severally, for
payment of the amount of R1 876 000,00 together
with interest and
costs on an attorney and own client scale.
[2]
The first three defendants have been sued in their respective
capacities as trustees of the Michiel Burger Boerdery Trust. The
first defendant is also sued in his personal capacity as fourth
defendant on the basis of a suretyship undertaking. The
causa
and basis of the debt is an agreement entered into
between the Mpola Trust and the Michiel Burger Boerdery Trust, dated
5 September
2011, which has been annexed to the summons as “A”
evidencing the plaintiffs’ claim in respect of the lease of
sheep to the Michiel Burger Boerdery Trust. The plaintiffs also claim
an order against the first, second and third defendants,
jointly and
severally, that a certain known property described as the “Remainder
of the farm Pietersdal 150” in the
district of Senekal be
declared specially executable.
[3] Annexure “A”
is an acknowledgement of debt for the sum of R1 876 000,00 which
fourth defendant undertakes in terms
of that agreement to secure by
means of a second mortgage bond passed over trust property, the farm
Pietersdal. The agreement provides
also for an interest rate of 17,7%
per annum calculated from 1 January 2011 and for payment of costs on
an attorney and own client
scale. In this regard it is alleged by the
first and second defendants that the first plaintiff threatened them
that a charge of
theft would be laid on a Friday with the South
African Police if they did not sign the acknowledgement that they
owed the amount
in question and that they would be detained in
custody over an entire weekend. This caused them to seek legal advice
and the attorney
consulted confirmed that such a course of conduct
would be open to the first plaintiff and, accordingly fearing arrest
they signed
annexure “A”.
[5] I
agree with counsel for the plaintiffs that this defence does not
amount to undue influence or duress, because of the improbabilities
inherent in it and because of its vagueness; no indication is given
of precisely when, where and how the threat was made. The precise
circumstances surrounding the alleged threat are conspicuous by their
absence in the defendants’ opposing papers. In addition,
it is
highly improbable that any attorney worth his salt would merely
confirm that the first/fourth defendant and his wife could
be
arrested without conducting some investigative action into the matter
and it is significant that the attorney has not deposed
to a
confirmatory affidavit in support of these averments made by the
first/fourth defendant. I have no doubt that if this version
were
indeed of substance, the attorney would have addressed a
communication to the plaintiffs in haste to inform them that no
grounds exist for criminal charges to be laid; that any such attempt
to arrest his client would amount to malicious and unlawful
arrest
and detention, at any rate time would be bought for the defendants
and some negotiations conducted on their behalf with
the first
plaintiff. So I reject out of hand the defendants’ version that
they were unduly influenced to sign annexure “A”.
It is
patently false. The test for duress has not been satisfied –
BOE BANK BEPERK v VAN ZYL
2002 (5) SA 165
(C);
AREND AND
ANOTHER v ASTRA FURNISHERS (PTY) LTD
1974 (1) SA 298
(C) at
306A – B.
I find that the
defendants’ defence of duress is a sham defence.
[6] The primary defence
raised by the defendants is that it was not the Michiel Burger
Boerdery Trust which leased the sheep, which
took delivery of the
sheep and which farmed with the sheep, but the Ek + Pa Trust which
had entered into a lease agreement with
first plaintiff in his
personal capacity. That agreement had been renewed on 31 January
2010. Fourth defendant avers that it is
the Ek + Pa Trust which owed
money to first plaintiff in his personal capacity and that the
Michiel Burger Boerdery Trust, as a
result of the duress brought to
bear upon fourth defendant by the plaintiffs, agreed to mortgage its
property in order to secure
the acknowledgement of debt undertaken by
first and second defendants. That is how it came about that third
defendant authorised
the signing of the lease agreement dated 28
February 2011 and the resolution giving the trustees authority to
sign the acknowledgement
of debt (annexure “A”). Fourth
defendant thus alleges that the agreement is a “simulated”
agreement. I
find this hard to believe that a trustee, supposedly
independent from family connection with first/fourth defendant and
second
defendant, would authorise signature of a lease agreement,
which is a farce, and more particularly, acknowledge an indebtedness
undertaken to make payment thereof when such a debt did not and never
did exist. Moreover, not just commercial reality shows that
parties
never bind themselves in this manner to pay such a debt, but such
conduct defies logic. Even more stupendous is the fourth
defendant’s
version that the third defendant agreed to and gave authority for the
Michiel Burger Boerdery Trust to mortgage
an immovable asset
belonging to the trust to secure payment of a debt not owed by the
trust and one which had never been incurred
by the trustees on behalf
of the trust.
[7]
The defendants have not disclosed a
bona
fide
defence which is good in law.
Summary judgment is accordingly entered against the defendants,
jointly and severally, the one paying,
the other to be absolved, for:
1. 1.1 payment of the
amount of R1 876 000,00;
1.2 interest on the
amount of R1 876 000,00 at the rate of 17,7% per annum from 1 January
2011 to date of payment in full;
2. In addition defendants
are ordered to pay the plaintiffs’ costs of the application,
jointly and severally, the one paying
the other to be absolved, on
the scale as between attorney and own client.
3. The property described
as “certain remainder of the farm Pietersdal 150, district
Senekal, Free State Province, in extent:
5 139 201 hectares”
held by virtue of Deed of Transfer T717/2007 is declared specially
executable.
_____________
S. EBRAHIM, J
On behalf of plaintiffs:
Adv N Snellenburg Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
On behalf of defendants:
Adv P C F van Rooyen SC
Instructed by:
Hill McHardy & Herbst
Inc
BLOEMFONTEIN
/sp