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2024
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[2024] ZANCHC 96
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Van Jaarsveld and Others v Standard Bank of South Africa Limited (1735/2021) [2024] ZANCHC 96 (31 May 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1735/2021
Date heard: 28-05-2024
Date delivered:
31-05-2024
In
the matter between:
ALBERTUS
STEPHANUS VAN JAARSVELD
1
ST
Applicant
(ID
NO: 7[...])
ELIZABETH
KATRINA VAN JAARSVELD N.O.
2
ND
Applicant
HENDRIK
HERMANUS JACOBUS VAN JAARSVELD N.O.
3
RD
Applicant
ALBERTUS
STEPHANUS VAN JAARSVELD N.O.
4
TH
Applicant
(Second
to Fourth Respondents in their capacities as duly
authorized
trustees of the
ALBERTUS STEPHANUS VAN
JAARSVELD
TESTAMENTÊRE TRUST, MT1122/92)
and
THE STANDARD BANK OF
SOUTH AFRICA LIMITED
Respondent
(REG No:
1962/000738/06)
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
This is an application for leave to appeal against part of the
judgment and orders made on 1 September
2023.
2.
In essence the applicants (the respondents in the main application)
seek leave to appeal against the
orders declaring the immovable
properties of the 2
nd
to 4
th
applicants
specially executable and that the Registrar be authorized to issue a
Writ of Execution against the properties.
3.
The only ground of appeal which was proceeded with during argument on
behalf of the applicants was that
I erred in not finding that the
failure of the respondent to attach the power of attorney granted to
the conveyancer to have the
mortgage bond registered creates doubt as
to whether the trustees authorized the registration of the mortgage
bond in favour of
the respondent.
4.
I have dealt with this argument in paragraphs 12 and 13 of the main
judgment. As mentioned therein
the applicants did not dispute
the validity of the mortgage bond in their answering affidavit.
In response to the averments
made by the respondent in its founding
affidavit relating to the continuing covering mortgage bond the
applicants answered in the
following manner:
“
3.9.1 The
averments in the aforesaid paragraphs are admitted only to the extent
that they correspond with the terms of the Covering
Mortgage Bond.
3.9.2 The
trustees of the Trust and I respectfully draw the Honourable Court’s
attention to the fact that the
trustees of the Trust did not in the
Continuing Covering Mortgage Bond agree thereto that the immovable
properties that were bonded
in terms of the aforesaid Bond are
specially executable.”
5.
The above quoted paragraphs from the answering affidavit are
contradictory to the extent that the Covering
Mortgage Bond does
specifically make provision therefore that the respondent may in the
event of breach institute proceedings for
the recovery of all amounts
secured by the bond and for an order declaring the property
executable (Clause 9.2). Be that
as it may, it is abundantly
clear from the above extract from the answering affidavit that the
validity of the mortgage bond has
not been disputed in the
application papers which served before me.
6.
In addition, the introductory portion of the covering mortgage bond
attached to the founding affidavit
reads as follows:
“
Be it hereby
made known
That Richard Scheffer
(the appearer) a duly
admitted conveyancer, appeared before me, the Registrar of Deeds at
Kimberley,
Being duly
authorised by a power of attorney
granted to him at Jan
Kempdorp
On 1 December 2017
By the Trustees of
time being of the ALBERTUS STEPHANUS VAN JAARSVELD TESTAMENTÊRE
TRUST
Registration Number MT
1122/92”
(own highlighting)
7.
The applicants took no issue with the specific notation in the
covering mortgage bond, that the conveyancer
was duly authorised by a
power of attorney granted by the trustees of the Trust. In
these circumstances this last ditch attempt
by the applicants to
create doubt as to the validity of the mortgage bond is spurious and
unmeritorious and would in my view have
no prospect of success on
appeal.
8.
With regard to the issue of costs, Mr Zietsman SC who appeared for
the respondent requested that the
applicants be ordered to pay the
costs of the application on the attorney and client scale since the
applicants did nothing to
pursue their application for leave to
appeal since the filing of Notice of the application on 20 September
2023, thus causing an
inordinate delay in the finalisation of this
matter. I must mention in this regard that the Registrar of
this court had contacted
me during the course of this month, probably
after the respondent had applied for a date for the hearing of the
application, to
inform me that the file had somehow slipped through
the cracks in the General Office and had thus not been brought to me
earlier
for the provision of suitable dates for the hearing of the
application, as is the usual practice in this Division. The
blame
for the delay in the hearing of this application can therefore
not be laid solely on the applicants. In the alternative, Mr
Zietsman has argued that costs be paid on scale C in terms of Rule
67A which came into effect on 12 April 2024. In considering
the
scale on which to award costs a court may have regard to the
complexity of the matter and the value of the claim or importance
of
the relief sought. This matter, in my view, falls somewhere in
the middle of the road and an appropriate scale on which
to award the
costs would be that of Scale B.
The
following order is made:
The
application for leave to appeal is dismissed with costs on Scale B.
C C WILLIAMS
JUDGE
For
Applicant:
Adv.
J Harmse
Haarhoffs
Inc
For
Respondents:
Adv.
P Zietsman SC
Phatsoane
Henry Inc
c/o
Van de Wall Inc