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[2024] ZAECMKHC 84
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Land and Agricultural Development Bank of South Africa v Kinros Estates (Pty) Ltd and Another (218/2023) [2024] ZAECMKHC 84 (6 August 2024)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Not Reportable
CASE NO. 218/2023
In the matter between:
THE LAND AND
AGRICULTURAL DEVELOPMENT
BANK OF SOUTH
AFRICA
Applicant
And
KINROS ESTATES (PTY)
LTD
(Registration number:
2018/261040/07)
First respondent
PIETER JOHANNES
GERHARDUS MOOLMAN
(Identity number:
8[…])
Second respondent
JUDGMENT
LAING J
[1]
This
is an application for,
inter
alia
,
judgment against the respondents for money previously advanced. The
applicants have already obtained an order for the attachment
and sale
of farming land to recover the amount in question.
[1]
The applicant’s
case
[2] In its founding
affidavit, deposed to by a legal advisor, Ms Sinenhlanhla Mtshali,
the applicant avers that it entered into
a loan agreement with the
first respondent on or about 9 October 2018 at Makhanda. The loan
agreement fell within the ambit of
section 26
of the
Land and
Agricultural Development Bank Act 15 of 2002
because the funds made
available to the first respondent were to be used for the purchase of
immovable properties. The terms thereof
stipulated,
inter alia
,
that the applicant would lend an amount, alternatively make credit
facilities available, in the sum of R 16,625,524 for the purchase
of
the land in question. The loan amount and interest thereon were
repayable over 25 years in annual instalments of which the first
was
the sum of R 2,286,465. The loan agreement provided for notice in the
event of default and indicated, furthermore, that the
entire
outstanding balance would become due and payable if an instalment was
not paid timeously. A certificate issued by the applicant’s
authorised representative would constitute
prima facie
proof
of any amount owed. The applicant, so it alleges, performed
accordingly.
[3] As security for the
first respondent’s indebtedness, the applicant caused a
covering mortgage bond to be registered over
three of the first
respondent’s immovable properties, situated in the Albany
district. The bond was registered for a further
sum of R 3,325,105 in
relation to the costs of preserving and realising the properties, as
well as any insurance premiums paid
or payable by the first
respondent as mortgagor. It constituted a continuing covering
security for any amount owed to the applicant.
Furthermore, the
second respondent bound himself as surety and co-principal debtor in
favour of the applicant. The sum claimable
from the second respondent
was limited to R 16,625,524 excluding attorney-and-client legal
costs.
[4] The applicant alleges
that the first respondent breached the loan agreement by failing to
pay the instalments due. Consequently,
the entire outstanding balance
became due and payable; this amounted to the sum of R 24,475,284 on
31 August 2022. Interest accrued
thereon at 11.88% per annum,
calculated daily and capitalised monthly. The applicant gave notice
to both the first and second respondents
on 9 November 2022,
demanding payment, but to no avail.
[5]
The
remainder of the application pertained to the remedy available under
section 33(4)
of the
Land and Agricultural Development Bank Act 15 of
2002
. The provisions in question permit the applicant to apply to
court for an order that authorises the attachment and sale of
property
to liquidate the amount owing in relation to what was
previously advanced, together with interest and costs.
[2]
As mentioned, the applicant has already obtained an order to that
effect. The alternative relief sought by the applicant, in addition
to the monetary judgment, was that the immovable properties be
declared specially executable. The applicant does not pursue this
further. It focuses, instead, on the recovery of the outstanding
balance owed by the first respondent, who has allegedly failed
to
make payment as required.
The respondents’
case
[6] In their answering
affidavit, the respondents deny that Ms Mtshali was authorized to
launch the application or to depose to
an affidavit in support
thereof. They contend that the applicant’s delegation of
powers, upon which Ms Mtshali relied, did
not list a legal advisor
for insolvency and recoveries as a signatory. There was also a need
for approval from Legal Services,
which was absent.
[7] The respondents admit
that a loan agreement was concluded with the applicant but assert
that it is unlawful and unenforceable.
This is because the
applicant’s representative, Mr Zilindile Makapela, was not
properly authorized. The applicant’s
chief financial officer
(‘CFO’) and a Class A official, as described in the
applicant’s delegation of powers,
ought to have concluded the
loan agreement; alternatively, the correct signatories, as prescribed
elsewhere in the delegation of
powers, should have signed. The
respondents go on to deny that the nature and purpose of the loan
agreement fell within the ambit
of
section 26
, read with
section 3
,
of Act 15 of 2002; they assert that the lending of money or provision
of credit facilities for the purchase of immovable properties
is not
a listed objective of the applicant. They also contend that not all
the conditions imposed by the loan agreement were met
and that the
certificate of balance is incorrect.
[8] By reason of the
unlawfulness of the loan agreement, say the respondents, the
applicant was not entitled to have a covering
mortgage bond
registered over the property. It was also not entitled to rely on the
bond to secure the additional amount of R 3,325,105
because this had
never been agreed. The suretyship is invalid, too, they say, for want
of compliance with the General Law Amendment
Act 50 of 1956; the
principal debtor was not properly identified. In any event, they
argue that the suretyship is unenforceable
because it is derived from
the unlawful loan agreement.
[9] The first respondent
concedes that it failed to make payment in accordance with the terms
of the loan agreement.
In reply
[10] The applicant, in
reply, notes that it was common cause that: a loan agreement was
concluded, there was a suretyship agreement
in place, money was lent
and advanced in terms of the loan agreement, the first respondent
failed to make payment of the instalments
due, and it remains in
arrears. These facts on their own, asserts the applicant, entitle it
to the relief that it seeks.
[11] Dealing with Ms
Mtshali’s alleged lack of authority and personal knowledge of
the matter, the applicant points out that
the respondents ought to
have invoked rule 7. They failed to do so. Regarding the loan
agreement, the applicant refers to the principle
of
pacta sunt
servanda
and points out that the respondents have benefitted from
the money advanced and have only challenged the lawfulness of the
loan
agreement some five years later.
Issues for
determination
[12] The issues, such as
remain to be determined, can be summarised as follows: (a) Ms
Mtshali’s authorisation to launch the
application and represent
the applicant; (b) the validity of the various agreements and the
implications thereof for the applicant’s
case; and (c) the
correctness of the certificate of balance. They serve as a useful
framework for the analysis below.
Authorisation
[13]
It
was previously a well-established principle that when a juristic
entity commenced motion proceedings, evidence was required to
indicate that it had indeed resolved to do so. In
Mall
(Cape) (Pty) Ltd v Merino Ko-operasie Bpk
,
[3]
a full court held that the best evidence would be an affidavit from
an official, annexing a copy of a resolution; each case had
to be
considered on its merits, however, and a court must decide whether
enough had been placed before it to conclude that it was
indeed the
applicant that was litigating and not some unauthorised person on its
behalf.
[4]
[14]
The
legal position appears, however, to have changed. In
Eskom
v Soweto City Council
,
[5]
Flemming DJP observed that the introduction of rule 7(1) in the
Uniform Rules of Court did away with the need to attach ‘the
many pages of resolutions, delegations and substitutions’ to
prove authority.
[6]
If an
attorney was authorised to bring an application, then the application
was necessarily that of the applicant.
[7]
The case was cited with
approval in
Ganes
and another v Telecom Namibia Ltd
,
[8]
where the Supreme Court of Appeal, per Streicher JA, held that it was
unnecessary for a deponent to be authorised to depose to
a founding
affidavit. It was the institution and prosecution of proceedings that
required authorisation. If a respondent wished
to challenge the
authority of the attorneys who had instituted the proceedings, then
rule 7(1) of the Uniform Rules of Court provided
a procedure by which
to do so.
[9]
This was confirmed
shortly afterwards in
Unlawful
Occupiers, School Site v City of Johannesburg
,
[10]
where Brand JA reiterated that rule 7(1) was the appropriate remedy
for a respondent who disputed the authority of any person allegedly
acting for the purported applicant.
[11]
More recently in
ANC
Umvoti Council Caucus and others v Umvoti Municipality
,
[12]
a full court, per Gorven J, considered the above decisions and found
as follows:
‘
With respect, the
reasoning in these cases also appears to me to accord with sound
legal principle. The deponent to an affidavit
is merely a witness, as
was pointed out by Streicher JA in
Ganes
’
s
case. It is the attorney of a litigant who, by signing a notice of
motion and issuing application papers, signifies that that
attorney
has been authorised to initiate the application on behalf of the
named litigant. Whether or not the litigation has been
properly
authorised by the artificial person named as the litigant should not
be dealt with by means of evidence led in the application.
If clarity
is required, it should be obtained by means of rule 7(1), since this
is a procedure which safeguards the interests of
both parties.’
[13]
[15] The learned judge
continued further:
‘…
I am
therefore of the view that the position has changed since Watermeyer
J set out the approach in the
Merino
Ko-operasie Bpk
case.
The position now is that, absent a specific challenge by way of rule
7(1), “the mere signature of the notice of motion
by an
attorney and the fact that the proceedings purport to be brought in
the name of the applicant” is sufficient. It is
further my view
that the application papers are not the correct context in which to
determine whether an applicant which is an
artificial person has
authorised the initiation of application proceedings. Rule 7(1) must
be used.’
[14]
[16] The findings of the
full court in
Umvoti
seem to be an accurate reflection of how
the legal position has changed. Evidence is not required to
demonstrate that a juristic
entity has properly resolved to launch an
application or that it has provided its legal practitioners with the
necessary instructions
or approval to institute motion proceedings. A
respondent who wishes to challenge such authorisation must use the
procedure contained
in rule 7(1).
[17] In the present
matter, the application was instituted by Wheeldon, Rushmere &
Cole Inc at the instruction of Leahy Attorneys
Inc, acting for the
applicant. This was, on its own, sufficient to demonstrate that the
attorneys involved were authorised to institute
motion proceedings.
By implication, the application was that of the applicant. If the
respondents had intended to challenge such
authority, then they ought
to have invoked rule 7(1); this was never done. The applicant is not
required to prove, on affidavit,
the existence of such authorisation.
Similarly, whether Ms Mtshali was properly authorised to depose to
the founding affidavit
is neither here nor there. The decision of the
Supreme Court of Appeal in
Ganes
makes it clear that the
deponent does not have to be authorised to do so; she is merely a
witness in the motion proceedings. Consequently,
there is no basis
for the respondents’ contention that Ms Mtshali lacked the
necessary authority to launch the application
and to depose to the
founding affidavit.
Validity of the
various agreements involved
[18] A finding on the
validity of the loan agreement might have implications for the
validity of the mortgage bond and suretyship.
These will be discussed
under the respective sub-headings below.
The loan agreement
[19]
It
appears to be common cause that Mr Makapela was the only official of
the applicant to have signed the loan agreement. The applicant’s
delegation of powers clearly required at least two signatories,
either the CFO and a Class A signatory for a ‘loan and/or
facility agreement within the borrowing limits agreement with any
counterparty’
[15]
or two
other signatories, as stipulated elsewhere. A Class C signatory, Mr
Reynier Kapp, who signed underneath Mr Makapela’s
signature,
clearly did so as a witness and nothing more.
[20] The applicant
contends that if the loan agreement was indeed unauthorised, then Mr
Makapela’s conclusion of the document
was subsequently ratified
when the applicant elected to pay the loan amount and make the credit
facility available to the first
respondent. This cannot be so. In
terms of section 18 of Act 15 of 2002, the Chief Executive Officer
(‘CEO’) is responsible
for the day-to-day affairs of the
applicant and may delegate any power or assign any duty to an
employee of the applicant. The
delegation of powers, attached to the
applicant’s papers, gives effect to the empowering provision.
Listed amongst the underlying
principles thereof is the following:
‘
d) One of the
exercising of powers must be in the field of responsibility and no
person can exercise a power that is not a function
of his/her
responsibility.’
[16]
[21]
It
is apparent that Mr Makapela purported to bind the applicant to the
loan agreement without the necessary authorisation. There
is no
evidence that the CEO as the delegating authority, alternatively the
applicant’s board of directors, subsequently ratified
such
conduct. The applicant referred to
Africast
(Pty) Limited v Pangbourne Properties Limited
,
[17]
where the respondent’s group company secretary and a director
signed a property sale agreement, later ratified by the board
of
directors. Theron JA found that the signatories had the requisite
authority. The facts are different to those in the present
matter and
the decision is of no assistance to the applicant. The loan
agreement, here, was unauthorised and must be deemed void
and
unenforceable.
The mortgage bond
[22]
The
applicant asserts that, notwithstanding any finding that the loan
agreement is unenforceable, it remains entitled to the monetary
judgment by reason of a cause of action based on unjust enrichment.
It argues that it is also entitled to enforce the underlying
mortgage
bond or suretyship. To that effect, it refers to
Panamo
Properties 103 (Pty) Ltd v Land and Agricultural Development Bank of
South Africa
,
[18]
where the Supreme Court of Appeal dealt with an agreement for the
loan of funds to purchase and develop certain agricultural
properties,
secured by a mortgage bond. Lewis JA held that the
agreement fell outside the objects of Act 15 of 2002, as listed in
section 3
thereof, making it invalid and unenforceable.
[19]
He held further that:
‘
The Bank may well
have an enrichment claim against Panamo for the money that it
advanced pursuant to the invalid contract. Thus,
while the Bank
contended for invalidity, it nonetheless argued that the mortgage
bond registered in its favour is valid and constitutes
real security
for a possible enrichment claim.’
[20]
[23]
By
reason of the order that the applicant has already obtained for the
attachment and sale of the immovable properties, it has no
apparent
need to enforce its rights under the mortgage bond. It did, however,
register the bond for a further sum of R3,325,105
for the costs of
preserving and realising the properties, as well as any insurance
premiums paid or payable by the first respondent
as mortgagor.
Insofar as it seeks to rely on the bond to recover the costs in
question,
[21]
it is necessary
to deal with its validity considering the court’s finding that
the loan agreement was unauthorised.
[24]
It
is trite that a mortgage bond is always accessory to an obligation.
If the obligation is unenforceable then the bond is also
unenforceable.
[22]
The court in
Panamo
stated that there was no
reason why a bond could not secure a debt arising from an enrichment
claim but whether it did so in the
circumstances depended on how the
terms of the bond were construed.
[23]
Gorven AJA concluded as follows:
‘
The bond is not a
model of clarity. However, construing it as a whole, I can find no
basis for limiting the broad, all-encompassing
language contained in
the preamble, clause 2.1, clause 8 and clause 15. I disagree with the
submission that the bond must suffer
the same fate as the loan. In my
view, the bond affords security for a claim for moneys due under one
of the condictiones.’
[24]
[25]
It
is necessary to consider the terms of the mortgage bond held by the
applicant in the present matter. To that effect, the applicant
drew
attention to the broadly worded preamble, recording the parties’
intention for the bond to serve as security for the
first
respondent’s obligations towards the applicant ‘vir welke
oorsaak ookal’.
[25]
This
was followed by clauses binding the first respondent to repayment of
the capital amount of R 16,625,524 and interest
thereon, as well
as an amount of R 3,325,105 for legal costs, service fees,
insurance premiums, tax, stamp duty, and other
costs that might rise
in accordance therewith. The contents of clause 2.1 are especially
pertinent. They provide as follows:
‘
2.1 Hierdie
verband is ‘n voortdurende dekkingssekuriteit vir gelde geleen
en voorgeskiet, gelde geleen en voorgeskiet te
word, en vir gelde wat
Land Bank van tyd tot tyd in die toekoms aan die Verbandgewer mag
leen en voorskiet en, in die algemeen,
vir enige bestaande of
toekomstige skulde wat die Verbandgewer aan Land Bank verskuldig is,
of verskuldig mag wees tot en met,
maar nie die Kapitale bedrag te
bowe te gaan nie.’
[26]
[26] The terms in
question are, as the applicant points out, exceptionally wide and
were clearly designed to give effect to the
preamble. The mortgage
bond was intended as security for any debt owed by the first
respondent to the applicant. Similarly, clause
3 provides that the
indebtedness may arise from,
inter alia
, all amounts already
owed, or which may become due and owing in terms of any agreement, as
well as any credit facilities made available
to the first respondent.
[27] The court agrees
with the applicant that the terms of the mortgage bond are
sufficiently broad to encompass indebtedness other
than that arising
directly from the loan agreement. This would include an amount owed
by the first respondent in relation to an
enrichment claim. The bond
is certainly enforceable.
The suretyship
[28]
Regarding the suretyship,
the respondents challenge its validity for want of proper
identification of the principal debtor in the
underlying agreement.
The front page thereof clearly stipulates, however, that the
applicant made certain financial facilities
available to Kinross
Estates Proprietary Limited, registration number 2018/261040/07;
there can be no mistake about the identity
of the principal debtor,
subsequently referred to as ‘die hoofskuldenaar’.
[27]
The respondents also contend that the agreement is unenforceable
because it was derived from the unlawful loan agreement. In
Shabangu
v Land and Agricultural Development Bank of South Africa
,
[28]
mentioned by the
applicant, Froneman J found that:
‘…
an
agreement in relation to an undisputed invalid earlier agreement may
be possible if it relates to an enrichment claim which results
from
the invalidity of the earlier debt, but not if it seeks to enforce
the earlier indebtedness. If the terms of the accessory
suretyship
agreement are wide enough to cover the enrichment claim, the sureties
may well also be liable.’
[29]
[29]
From
the terms of the agreement in the present matter, the second
respondent provided the suretyship in relation to any amount owed
by
the first respondent, either at the time or in the future.
[30]
It is clear that the parties intended that the terms of the agreement
be interpreted to have as wide a meaning as possible; they
are
sufficient to include any claim that the applicant may have for
enrichment.
Certificate of balance
[30] The remaining issue
for determination is the correctness of the certificate of balance.
It is relevant only insofar as it might
have a bearing on the
calculation of the enrichment amount. The respondents originally
challenged its accuracy to assert that the
applicant failed to
demonstrate that it had a claim for a liquidated amount, thereby
preventing the applicant from relying on the
remedy envisaged under
section 33(4) of Act 15 of 2002. In reply, the applicant attached a
transaction list and an updated certificate
of balance, contending
that these comprised a true reflection of the extent of the first
respondent’s indebtedness.
[31] This might indeed be
of benefit to the applicant where it could base its claim on the
terms of a valid loan agreement. The
court has, however, already
found that the loan agreement is void and unenforceable for want of
the necessary authorisation. Inasmuch
as the applicant has relied on
the corresponding provisions of the loan agreement to capitalise
interest at the various rates indicated
and to levy the fees
indicated, the certificate of balance cannot be used as the basis for
any claim for enrichment.
Relief to be granted
[32] It is necessary, at
this stage, to decide what relief can be granted to the applicant. At
the invitation of the court, the
applicant delivered supplementary
heads of argument in terms of which counsel submitted that, in the
event of the court’s
finding that the loan agreement was void
and unenforceable, the applicant would indeed have an enrichment
claim. This would be
limited to the capital amount advanced to the
first respondent; interest would run from the date of demand or the
date of the institution
of proceedings. It was suggested, however,
that the claim would be akin to one for damages, only capable of
determination upon
the leading of further evidence.
[33]
The
court is inclined to agree. The applicant has, in terms of the
present application, sought to enforce its rights under a loan
agreement, subsequently held to have been unauthorised. An enrichment
claim, possibly based on either the
condictio
indebiti
or
the
condictio
sine causa
,
[31]
appears to be available to the applicant but would constitute a
separate cause of action altogether. The court cannot find that
relief to such effect can be granted on these papers.
[34]
Regarding the award of
costs, it is trite that the court enjoys a wide discretion, to be
exercised judicially upon a consideration
of the facts in each
case.
[32]
In the present
matter, the issues in relation to the attachment and sale of the
immovable properties have become moot; the applicant
has already
obtained relief in that regard.
[33]
The respondents have, admittedly, successfully opposed the
applicant’s reliance on the loan agreement to recover the money
previously advanced. Their opposition was based on technical grounds,
however, and they conceded that the first respondent had
received the
funds but had failed to make repayment. The court found, moreover,
that the applicant is entitled to enforce both
the mortgage bond and
the suretyship. In the circumstances, it would seem fair merely to
require each party to pay its own costs.
[35] Consequently, the
following order is made:
(a) the application in
relation to the remaining relief sought by the applicant, in terms of
prayers 3, 4, and 5 of the notice of
motion, is dismissed; and
(b) there is no order as
to costs.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the applicant:
Adv
Van Schalwyk
Instructed
by:
Leahy
Attorneys Inc.
2
nd
Floor Parc Nouveau Building
225
Veale Street
Brooklyn,
Pretoria
Tel:
012 346 4243
E-mail:
denis@leahyattorneys.co.za
siobhan@leahyattorneys.co.za
REF:
D Leahy/SH/L327
c/o
Wheeldon, Rushmere & Cole Inc.
Matthew
Fosi Chambers
119
High Street
Makhanda
Tel:
046 622 7005
Ref:
M Van der Veen/Todd/S25476.
Date
of hearing:
07
March 2024.
Final
date for supplementary
submissions:
09
July 2024.
Date
of delivery of judgment:
06
August 2024.
[1]
The applicant obtained an order on 12 September 2023 to attach and
sell the land. This was unknown to counsel on the date upon
which
the present matter was argued but emerged later upon the court’s
request for supplementary heads of argument.
[2]
The provisions stipulate the circumstances that must exist before
the applicant can apply to court; they include a situation
where the
payment of any amount due, in relation to an advance previously
made, is in arrears.
[3]
1957 (2) SA 347
(C).
[4]
At 352A-B.
[5]
1992 (2) SA 703 (W).
[6]
Rule 7(1) provides that a power of attorney to act need not be
filed, but the authority of anyone acting on behalf of a party
may
be disputed, in which event such person may no longer act unless he
or she has satisfied the court that he or she is authorized
to do
so.
[7]
Eskom
,
at 705E-H.
[8]
2004 (3) SA 615 (SCA).
[9]
At paragraph [19].
[10]
2005 (4) SA 199 (SCA).
[11]
At paragraphs [14] to [16].
[12]
2010 (3) SA 31 (KZP).
[13]
At paragraph [27].
[14]
At paragraph [28]. Footnotes omitted.
[15]
Sic.
[16]
Sic.
[17]
2014 JDR 0616 (SCA).
[18]
2016 (1) SA 202 (SCA).
[19]
The court relied, too, on
sections 66
and
68
of the
Public Finance
Management Act 1 of 1999
to the effect that any public institution
that concludes a transaction not authorized by legislation will not
be bound thereby.
At paragraph [22].
[20]
At paragraph [23].
[21]
The order granted on 12 September 2023 authorises the applicant to
attach and sell the properties to liquidate the amount owing
for
advances made, together with interest and costs in relation thereto.
It also authorises the applicant to appoint a private
security
company to safeguard the properties and orders the respondents to
pay the costs thereof. It is silent, however, on the
question of
liability for the payment of any insurance premiums.
[22]
Albert
v Papenfus
1964
(2) SA 713
(E), referred to in
Panamo
,
at paragraph [24]. See, too, the mention of
Kilburn
v Estate Kilburn
1931
AD 501.
[23]
Panamo
,
at paragraphs [27] and [30].
[24]
At paragraph [46].
[25]
Translated as ‘for any cause whatsoever’ [own
translation].
[26]
Translated as ‘this bond is a continuing covering security for
monies lent and advanced, monies to be lent and advanced,
and for
monies that the Land Bank may from time to time, in the future, lend
and advance to the mortgagor, and, in general for
any existing or
future debts that the mortgagor owes or might owe to the Land Bank,
up to, but not exceeding, the capital amount’
[own
translation].
[27]
The suretyship agreement indicates that the applicant made the
facilities available to the first respondent, ‘hierna genoem
die hoofskuldenaar’, translated as ‘hereafter referred
to as the principal debtor’ [own translation].
[28]
2020 (1) SA 305
(CC).
[29]
At paragraph [32].
[30]
The applicant referred to the preamble, which states that the second
respondent binds himself as surety for the repayment of
all or any
amounts owed or that may, from time to time, become owing by the
first respondent to the applicant. See, too, clause
3 thereof.
[31]
See
DP Visser, ‘Enrichment’, in
LAWSA
(vol
17, 3ed), at paragraphs 214 and 222. The subject is canvassed in
greater detail in JC Sonnekus,
Unjustified
Enrichment in South African Law
(LexisNexis,
Durban, 2008), at 227 and 333
et
seq
.
[32]
DE
van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat
e-publications, RS 23, 2024), at D5-6 to D5-6B.
[33]
See
n 1 above.