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2024
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[2024] ZANCHC 44
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Koegelenberg v Land and Agricultural Development Bank of South Africa and Others (658/2022) [2024] ZANCHC 44 (3 May 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:658/2022
Heard on: 22/04/2024
Delivered on:
03/05/2024
In the matter between:
GIDEON
JACOBUS KOEGELENBERG
Applicant
and
THE LAND AND
AGRICULTURAL DEVELOPMENT BANK
OF
SOUTH
AFRICA
First Respondent
PRAIA
ROCHA 122 INVESTMENTS (PTY) LTD
Second Respondent
GLENN
GILMOUR MURDOCH
Third
Respondent
In re:
THE
LAND AND AGRICULTURAL DEVELOPMENT
Applicant
BANK OF SOUTH AFRICA
and
PRAIA
ROCHA 122 INVESTMENTS (PTY) LTD
First
Respondent
GLENN
GILMOUR MURDOCH
Second Respondent
GIDEON
JACOBUS KOEGELENBERG
Third Respondent
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
MAMOSEBO J
[1] The applicant
in this application is Mr Gideon Jacobus Koegelenberg. He is seeking
leave to appeal to the Supreme Court
of Appeal (SCA), alternatively,
to the Full Court of this Division against the judgment and order
granted on 26 May 2023 granting
monetary judgment and declaring
certain immovable agricultural properties specially executable in
favour of the Land and Agricultural
Bank of South Africa (the Land
Bank). The second and third respondents, namely, Praia Rocha 122
Investments (Pty) Ltd (Praia Rocha)
and Mr Glenn Gilmour Murdoch,
have filed a notice to abide the Court’s decision.
[2] These are the
grounds relied upon by the applicant in substantiation that the Court
had erred:
2.1 there was an
implied term or tacit term in the suretyship agreement imposing a
duty upon the Land Bank to inform him
of any change in Praia Rocha’s
ability to pay in terms of the loan agreement;
2.2 the Land Bank
breached the suretyship agreement with him by not informing him of
Praia Rocha’s failure to pay;
2.3 he was
prejudiced by the Land Bank’s silence and should have been
released from the suretyship;
2.4 he did not
receive the letter of demand prior to institution of the application
as it was not sent to his chosen
domicilium
address; and
2.5 the common law
of suretyship should be developed as to the existence of implied
and/or tacit terms in contracts to bring
it in line with the 1996
Constitution.
[3]
The test to be applied in determining whether an application for
leave to appeal should be granted or not is governed
by s 17(1) of
the Superior Courts Act
[1]
which
stipulates:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)
(i) the appeal would have
reasonable prospects of success; or
(ii) there is
some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under
consideration;
(b)
The decision sought on appeal does
not fall within the ambit of s 16(2)(a); and
(c)
Where the decision sought to be
appealed does not dispose of all issues in the case, the appeal would
lead to a just and prompt
resolution of the real issues between the
parties.”
[4]
In
S
v Smith
[2]
Plasket AJA stressed:
“
[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law,
that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are
not remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility
of success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words,
be a sound, rational basis for
the conclusion that there are prospects of success on appeal.”
As
reiterated by Leach JA in
S
v Kruger
[3]
the Courts should follow the aforementioned test scrupulously in the
interests of justice.
[5]
Mr Harmse, counsel for the applicant, persisted with the argument
that there is an implied or tacit term in the suretyship
agreement
imposing a duty on the Land Bank to notify the applicant of any
change in Praia Rocha’s ability to repay the loan
in terms of
the loan agreement. Regard being had to the wording of the suretyship
agreement such argument is incomprehensible.
The wording makes it
clear that it is an ancillary obligation arising from the primary
obligation of Praia Rocha. Taking cue from
the principle espoused in
Endumeni
[4]
on the correct approach to interpreting contracts, and upon a plain
interpretation of the suretyship agreement, I am not persuaded
that
the Land Bank had a duty to inform the applicant of any default by
Praia Rocha. To demonstrate that the applicant was aware
of the
financial woes of Praia Rocha, as already dealt with in the main
judgment, he communicated with the Land Bank by email on
at least two
occasions, in February and June 2020, nudging the Land Bank to
proceed with the sale of the encumbered properties
in order to
alleviate the debt. This ground therefore stands to fail.
[6] The applicant
could not have been prejudiced by the alleged failure of Land Bank to
notify him of Praia Rocha’s
financial woes and how such failure
would relieve him of his suretyship. The fact of the matter is that
he became aware of the
situation and alerted the Land Bank and urged
it to act. This does not support his claim of prejudice. He has thus
not made out
a case of prejudice on the papers and nothing that
supports his stance that he be relieved of his suretyship
obligations.
[7]
Mr Harmse further contended that because the Land Bank is an Organ of
State it is bound by the provisions of the Promotion
of
Administrative Act
[5]
(PAJA) and
the Land Bank’s management of its arrears constitutes
administrative action to be dealt with in terms of PAJA.
It was
further contended that, because the Land Bank had renegotiated the
loan with Praia Rocha in the absence of the applicant,
the Land
Bank’s decision to grant Praia Rocha an extension falls within
the purview of s 3(2)(b)(i) and (ii) of PAJA. According
to counsel
PAJA has therefore introduced an implied term into the suretyship
that an Organ of State is obliged to notify the surety
of any changed
circumstance in relation to the debtor’s repayment
capabilities. Failing to do so should result in the applicant
as
surety being discharged from his obligations, it was urged.
[8] This
application, in my view, stems from the Land Bank pursuing an
enforcement of a debt and certain agricultural properties
declared
specially executable. This dispute is contractual in nature and has
nothing to do with an administrative decision. PAJA
finds no
application.
[9]
The applicant further persisted with his contention that he did not
receive the letter of demand as it was not sent to
his
domicilium
address. The main judgment has dealt with this aspect. The following
was authoritatively pronounced by Cameron J in
Sebola
and Another v Standard Bank of South Africa Ltd and Another
[6]
:
“
[74]
These considerations drive me to conclude that the meaning of
'deliver' in s 130 cannot be extracted by parsing
the
words of the statute.
It must be found in a
broader approach — by determining what a credit provider should
be required to establish, on seeking
enforcement of a credit
agreement, by way of proof that the s 129 notice in fact reached the
consumer. As pointed out earlier,
the statute does not demand that
the credit provider prove that the notice has actually come to the
attention of the consumer,
since that would ordinarily be impossible.
Nor does it demand proof of delivery to an actual address. But given
the high significance
of the s 129 notice, it seems to me that the
credit provider must make averments that will satisfy the court from
which enforcement
is sought that the notice, on balance of
probabilities, reached the consumer.”
See
also
Kubyana
v Standard Bank of South Africa
[7]
.
The applicant did not
deny the fact that he was served with the application timeously and
therefore enabled to ventilate the matter
fully. This is not a
legitimate ground to nullify the entire process. On the contrary, it
would amount to putting form over substance.
It follows that this
ground also has to fail.
[10]
The applicant’s reliance on the principle in
Alfred
McAlpine and Son v Transvaal Provincial Administration
[8]
to
bolster his contention that the common law needs to be developed, is
misplaced. This contention was rejected in the main judgment
because
the principle does not assist his argument. He has also not raised or
argued the requirements to be met for the development
of the common
law as set out in
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[9]
.
With
the evidence before me I am neither persuaded nor inclined to accept
that it is necessary, because our law pertaining to the
interpretation of contracts and suretyships is definitively
pronounced upon.
[11] Having
carefully and dispassionately considered the application for leave to
appeal in order to determine whether there
are reasonable prospects
that another court would come to a different finding than this court
had reached, I have not found any.
There are, in my view, no
cognisable prospects of success nor compelling reasons that warrant
the attention of the SCA or the Full
Court of this Division, nor are
there any compelling reasons to entertain this appeal. I am
therefore, satisfied that there are
no reasonable prospects of a
successful appeal. In the result the application for leave to appeal
to the Supreme Court of Appeal
alternatively, to the Full Bench of
this Division, must fail.
[12] In as far as
costs are concerned, there is no reason why costs should not follow
the result.
[13] In the result
the following order is made:
The application for
leave to appeal is dismissed with costs, on a scale as between
attorney and client, such costs to include those
consequent upon the
employment of two counsel.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the
applicant:
Adv. J Harmse
Instructed
by:
Adrian B Horwitz & Associates
For the 1
st
respondent:
Adv. MP Van der Merwe SC
Adv. A Van der Merwe
Instructed
by:
Leahy Attorneys Inc
c/o
Van de Wall Inc
For the 2
nd
and 3
rd
respondents:
BJ Liebenberg and Associates
c/o
PGMO Attorneys Inc
[1]
10 of 2013
[2]
2012
(1) SACR 567
(SCA) para 7
[3]
2014
(1) SACR 647
(SCA) at 649d (para 3)
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18
[5]
3
of 2000
[6]
2012
(5) SA 142
(CC) para 74
[7]
2014
(3) SA 56
(CC) at paras 31, 36, 39, 52 and 53
[8]
1974
(3) SA 506 (A)
[9]
[2001] ZACC 22
;
2001
(4) SA 938
(CC)