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[2024] ZAECMKHC 88
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Van Zyl v Humansdorp Co-Operative Ltd and Another (537/2023) [2024] ZAECMKHC 88 (13 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 537/2023
In the matter between:
PIETER VAN ZYL
Applicant
and
HUMANSDORP
CO-OPERATIVE LTD
First Defendant
MARIUS COETZEE
Second Defendant
JUDGMENT
Govindjee J
[1]
The plaintiff (Mr Van Zyl) obtained an overdraft
and loan facility from the first defendant (HCL) during 2015. During
November 2015,
the trustees of the Pieter van Zyl Family Trust (the
trust) resolved to bind the trust as surety for Mr Van Zyl’s
liabilities
to HCL, authorising Mr Van Zyl to sign the necessary
documentation on behalf of the trust to give effect to the
resolution. Mr
Van Zyl proceeded to bind the trust as surety for and
co-principal debtor
in solidum
with
him by way of an agreement signed in favour of HCL on 14 December
2015 (the suretyship). The trust also bonded its farming
property in
favour of HCL as security for Mr Van Zyl’s obligations.
[2]
Following
an action instituted during August 2018, HCL obtained default
judgment against the trustees, jointly and severally, in
their
capacity as trustees of the trust, on 13 November 2018.
[1]
The cause of action underpinning the default judgment was the
provision to Mr Van Zyl of a ‘monthly running account with
a
credit limit of R100 000’, following an application for
credit as well as a ‘seasonal account facility’
provided
by HCL in favour of Mr Van Zyl in the sum of R2 500 000. Mr
Van Zyl defaulted on his obligations under the credit
facilities and
HCL secured judgment against the trustees.
[3]
Immovable property belonging to the trust was
sold, enabling HCL to recover an amount of R2 656 800,02 on
20 July 2020.
As of 25 March 2022, however, the remaining balance due
amounted to R1 965 620,12, being a combination of unpaid
capital,
interest and cost amounts due (the outstanding amount).
[4]
Towards
the end of March 2022, the second defendant (Mr Coetzee),
representing HCL, prepared a notice to appear in terms of s 65A
of
the Magistrate’s Court Act, 1944. The remaining trustees of the
trust, being Mr Van Zyl and his father, were required
to attend the
Magistrate’s Court in Jansenville, in their representative
capacities as trustees, for purposes of an enquiry
into the financial
position of the trust in respect of the outstanding amount due to HCL
(the s 65A enquiry). It is pertinent to
indicate that the notice
issued required the trustees to submit a full statement to the
Magistrate’s Court, including various
financial information and
information pertaining to the workings of the trust.
[2]
[5]
The present proceedings were occasioned by what
transpired when, on 8 June 2022, Mr Van Zyl attended the s 65A
enquiry unrepresented
and encountered Mr Coetzee. Mr Van Zyl signed
an acknowledgement of debt in which he assumed personal liability for
the outstanding
debt to HCL. He agreed to a payment plan requiring,
initially, monthly instalments of R1000,00 per month. Mr Van Zyl now
seeks
an order cancelling or setting aside the acknowledgement of
debt together with return of all monies paid to HCL in terms thereof.
The alleged basis for this relief is that the agreement was concluded
based on Mr Van Zyl’s reliance on a false representation
made
by Mr Coetzee, alternatively that he was unduly influenced by Mr
Coetzee in concluding the agreement.
Misjoinder
[6]
Mr
Coetzee entered a special plea of misjoinder on the basis that he had
at all times acted in his official capacity as the mandated
attorney
and agent of HCL. The inclusion of a party who is not a necessary
party will typically constitute a misjoinder unless
it can be
justified on the ground of convenience or in terms of the Uniform
Rules.
[3]
[7]
The
factual basis of joining a party must be pleaded.
[4]
The applicable test has been described as follows:
[5]
‘
The
test is whether or not a party has a “direct and substantial
interest” in the subject matter of the action, that
is, a legal
interest in the subject matter of the litigation which may be
affected prejudicially by the judgment of the court.
A mere financial
interest is an indirect interest and may not require joinder of a
person having such interest. The mere fact that
a party may have an
interest in the outcome of the litigation does not warrant a
non-joinder plea. The rule is that any person
is a necessary party
and should be joined if such person has a direct and substantial
interest in any order the court might make,
or if such an order
cannot be sustained or carried into effect without prejudicing that
party, unless the court is satisfied that
he has waived his right to
be joined.’
[8]
It is readily apparent that Mr Van Zyl’s
action, which centres around the validity of the acknowledgement of
debt in favour
of HCL, would be entirely unaffected by the removal of
Mr Coetzee as a party to the litigation. As pleaded, there was simply
no
substantive relief sought against Mr Coetzee and no extant cause
of action that was discernible pertaining to him. There was also
no
apparent question of law or fact justifying joinder. As Mr
Brown
,
for the defendants, submitted, Mr Coetzee had no ‘direct and
substantial’ legal interest in the outcome of the litigation
which may be affected prejudicially by any judgment of this court.
Any order that may be made in favour of Mr Van Zyl could be
sustained
or effected without prejudicing Mr Coetzee, given that it would
operate directly against HCL. The evidence led confirms
that Mr
Coetzee’s interest was at all times limited strictly to acting
at the behest of HCL as its attorney. In the circumstances,
he has
been improperly joined as a party to the proceedings. The special
plea of misjoinder is upheld so that the claim against
the second
defendant is dismissed. The issue of costs is dealt with elsewhere in
this judgment.
Evidence
[9]
Mr Van Zyl conceded that he had misrepresented the
extent of his assets by reflecting trust assets in his applications
for finance
from HCL. The farm ‘Request No. 234’, for
example, was owned by the trust but reflected by Mr Van Zyl as his
own property
in the application for finance. Mr Coetzee had become
aware of this when he spoke to Mr Van Zyl outside court in
Jansenville. By
that stage the farm, which had been attached for sale
by auction, had been sold privately to South African National Parks.
The
proceeds of that sale went, in the first place, to Nedbank, the
balance reducing the trust’s debt to HCL.
[10]
Mr Van Zyl accepted that he had attended court in
Jansenville in his capacity as a trustee. Although he appeared
unrepresented,
he had instructed an attorney, Mr Martin Keevy
(Keevy), when he received the s 65A notice. On 30 May 2022, Keevy had
sought a postponement
of the matter, indicating that the trust was
dormant and not in any position to generate income. The
correspondence indicated that
an auditor had been instructed to
provide a detailed report as to the current financial status of the
trust. Keevy had also had
a discussion with Mr Coetzee, who was of
the view that much of the information stipulated in the notice could
be provided without
the need for a formal audit. When information
from an auditor was not forthcoming, Mr Coetzee wrote to Keevy to
explain that the
trustees would not be excused from attendance at the
s 65A proceedings. The response from Keevy indicated that the
appointed auditor
was unable to provide the requested information for
various reasons.
[11]
Mr Coetzee’s version of what transpired at
Jansenville accords, by and large, with a contemporaneous file note
he prepared
at the time, including the following information:
‘
Attending
at court, meeting Mr van Zyl and discussing his indebtedness. Mr van
Zyl explains that the trust is not possessed of any
assets and that
it has ceased trading. The assets listed in the application for
credit traversed and it became apparent that certain
assets were
included under his personal [income] in circumstances where it did
not belong to him.
I explained to him that
we will end up investigating the affairs of the trust to ensure that
there had not been any dispositions
without value or circumstances
which are questionable upon which the assets were disposed of. He
understands and assures me that
nothing untoward occurred and that
all sales had always been for value or the best possible value.
I thereafter explained to
him that the Co-op will not cease to chase the money. I explained to
him that a personal undertaking to
pay the amount due by means of
instalments would be acceptable to the Co-op, to which Mr van Zyl
agreed. I thereafter prepared
to draft an acknowledgement of debt
within incorporated payment terms and discussed it with him at
length. I went through each
clause of the acknowledgement of debt and
the annexures thereto and explained it to him, and informed him that
he has the opportunity
to discuss it with his attorney would he so
require. He said that the document appears standard and that he is
properly informed.
I presented the final
version of the document to him, and he signed it before two
witnesses, one being the court manager and the
other myself.
I obtained instructions
from the Co-op in the interim and they were agreeable to the terms
thereof.
We thereafter returned to
the Magistrate in Chambers where the Section 65 proceedings were
postponed for 6 months to 28 November
2022, and a warrant of arrest
of Mr van Zyl Senior authorised, however held over pending his
appearance on 28 November 2022. The
Magistrate recorded that the
parties had reached agreement and that Mr van Zyl had undertaken to
make payment personally, and that
the postponement is done on the
basis that payments will be monitored, and in the event of
non-compliance therewith, the proceedings
on 28 November 2022 will be
used for the purposes of the further interrogation.’
[12]
Much of this is undisputed by Mr Van Zyl. The
evidence reveals that Mr Van Zyl was made aware, at the time, that
HCL would
insist to sequestrate the trust unless an arrangement was
made, and that an agreement with the trust would be unhelpful as it
was
not trading. Ultimately, Mr Van Zyl felt he ‘had to agree
to give something … had to sign it’, bearing in mind
that he accepted some responsibility for the debt to HCL. He recalled
that Mr Coetzee was concerned that the monthly amount he
initially
tendered as payment would be difficult to maintain, and had suggested
a lower initial payment amount. He also had specific
recollection of
Mr Coetzee’s suggestion that he contact Mr Keevy before signing
the acknowledgement of debt, which he did
outside court in
Jansenville on 8 June 2022.
[13]
The acknowledgement of debt was couched in the
following terms:
‘
I,
the undersigned Pieter Du Toit Van Zyl … (hereafter referred
to as “the Debtor”) … do hereby admit
that I am
liable, and hereby held bound to Humansdorp Landbou Co-operative
Limited … for the due and proper payment of the
amount of
R1 966 312,41 … by reason of monies lent and
advanced to the Debtor by the Creditor at the Debtor’s
special
instance and request, (hereafter referred to as “the Principal
Debt”) …’
[14]
Mr Van Zyl accepted, during cross-examination,
that the reference to ‘monies lent and advanced’ was
linked directly
to his personal application for credit and inability
to pay the outstanding amount. He conceded that he had felt guilty
having
received money from HCL that had not been reimbursed. Mr
Coetzee sent a copy of the signed agreement to Mr Van Zyl the
following
day, drawing attention to the fact that Mr Van Zyl had
given a personal undertaking to make payment in terms of the
acknowledgement
of debt. Mr Van Zyl explained that he had contacted
Keevy telephonically after signing the acknowledgement of debt the
previous
day, having not been able to reach him while discussing
matters with Mr Coetzee, and sent him a copy of this document when it
was
received. Keevy wrote to Mr Coetzee on 9 June 2022, noting that
‘our instructions are Mr Van Zyl and the Pieter van Zyl Family
Trust has no income at this stage’ and requesting an
‘indulgence’ in respect of payment increases contained in
the acknowledgement of debt as well as interest. No mention was made
of any misrepresentation, compulsion or undue influence exerted
in
the process resulting in the acknowledgement of debt, and no further
correspondence was received from Mr Van Zyl’s attorneys
for
almost four months.
[15]
On 6 October 2022, Mr Van Zyl’s attorney
queried the quantification of the balance due to HCL. By this time
various payments
had been made by Mr Van Zyl pursuant to the
acknowledgement of debt. Again, there was no mention of
misrepresentation or undue
influence linked to the signing of the
acknowledgement of debt. Mr Coetzee responded with a detailed
explanation, including various
attachments, on the same day.
Remarkably, despite proper discovery having been made, Mr Van Zyl
testified that he had not seen
this information until it was
presented to him in court during cross-examination.
Analysis
The
misrepresentation claim
[16]
In
order to succeed in setting aside a contract on the basis of a
pre-contractual misrepresentation, a plaintiff must plead and
prove,
inter
alia
,
that a representation was made which was false. A negligent
misstatement may, depending on the circumstances, give rise to a
delictual claim for damages on the part of the person to whom it was
made, even though the misstatement induced that person to enter
into
a contract with the party who made it.
[6]
To succeed, the plaintiff must prove,
inter
alia
,
that the statements attributed to the defendant, or its
representative, in the pleadings were made and that these statements
were materially false.
[7]
[17]
Mr
Kleyn
,
counsel for Mr Van Zyl, premised the first basis for the claim on the
argument that Mr Coetzee had represented to Mr Van Zyl,
at their
meeting, that Mr Van Zyl was personally liable for the judgment debt
of the trust. That argument does not accord with
my understanding of
the evidence as to what transpired.
[18]
It must be accepted that Mr Van Zyl was a
layperson, albeit that he had served as a trustee of the trust,
conducted business as
a farmer, transacted in respect of the sale of
the farm and been involved in the proceedings that led to judgment
being taken against
the trust. He had played a dual role in
transacting both in his own name as well as the representative
trustee of his family trust.
The evidence reveals that he had
conflated the two when it was convenient to do so, notably in order
to secure finance from HCL.
[19]
Mr Van Zyl had clearly taken legal advice upon
receipt of the s 65A notice. On his way to court in Jansenville, he
could not have
been in any doubt that he was proceeding in his
representative capacity as a trustee. The s 65A notice made this
apparent and each
of the components of the information requested
pertained explicitly to the trust. Mr Van Zyl arrived with none of
this documentation,
resulting in Mr Coetzee basing their discussion
on the documents already in his position, including Mr Van Zyl’s
application
for personal finance from HCL, dating back to 2015. It
was Mr Van Zyl who explained that some of the assets depicted
actually belonged
to the trust. Bearing in mind that the purpose of
the appearance in Jansenville was to enquire into the financial
position of the
trust and its ability to satisfy the judgment debt,
this would have been music to the ears of Mr Coetzee. He had been
briefed by
HCL to recover the balance of the judgment debt and had
settled on the s 65A process as the optimal mechanism for this
purpose.
[20]
Mr Van Zyl would undoubtedly have been aware that
the proceedings were of a serious nature. He had placed his attorneys
in possession
of the s 65A notice and instructed them to advise Mr
Coetzee that the trustees would cooperate with the process. He had
also instructed
an auditor to provide a detailed report as to the
financial state of the trust at the time. That undertaking and
explanation was
conveyed by Keevy, coupled with a request for
postponement of the proceedings of 8 June 2022, and buttressed by the
written submission
that the trust was dormant and in no position to
generate any income or to make any offer towards payment of the
judgment debt.
In drafting that correspondence, Keevy clearly
consulted with Mr Van Zyl and acted on his instructions. It must be
accepted that
he and his client had discussed the implications of the
s 65A enquiry against the backdrop of the ‘dormant’,
incomeless
trust. When Mr Coetzee responded by requesting supporting
documentation to verify Keevy’s description of its financial
position,
and subsequently refused the request for a postponement
based on the failure to provide the documentation requested, Keevy
and
Mr Van Zyl decided that he would appear unrepresented, seemingly
due to funding constraints. Nonetheless, Keevy must have provided
some indication of what was to be expected at the s 65A process.
[21]
Considered in its entirety, Mr Coetzee’s
file note reflects that his discussion with Mr Van Zyl was orientated
around the
indebtedness of the trust in respect of the judgment debt.
The probabilities favour the conclusion that at all material times Mr
Van Zyl was aware of the judgment debt against the trust as well as
the fact that this debt arose from its obligations as surety
in
respect of the loan agreement concluded by Mr Van Zyl in his personal
capacity. Matters only took a turn when Mr Van Zyl sought
to avoid
the continuation of the s 65A process in light of the possible
sequestration of the trust, either out of concern as to
the past
activities of the trust or in order to protect assets still in the
name of the trust. At least one such asset was being
utilised by a
family member. The threat and likelihood of possible sequestration
was a direct consequence of the outstanding judgment
debt and the
information provided verbally by Mr Van Zyl in respect of existing
trust assets. The only viable alternative in Mr
Coetzee’s mind
was a personal acknowledgement of debt.
[22]
Mr
Coetzee would have appreciated that suretyship is a contract in terms
of which a third party agrees to pay, while there is in
existence an
obligation due by a debtor to a creditor, the whole or part of that
obligation to the latter. Significantly, this
is not in lieu of the
debtor, but jointly and severally with the debtor so that the debtor
remains bound to the creditor in terms
of the principal obligation,
while the surety is bound to the creditor in terms of the contract of
suretyship.
[8]
The reality of
the matter was that the key event underpinning the judgment debt was
Mr Van Zyl’s own application for overdraft
and loan facilities
from HCL during 2015. Significantly, this is reflected in the
acknowledgement of debt itself: Mr Van Zyl formally
admitted
liability for the balance of the money due to HCL as a consequence of
‘monies lent and advanced’ to him personally
by HCL. He
felt obligated to settle that debt and agreed to an acknowledgement
of debt absent any misrepresentation as to the basis
for this
obligation. On the evidence, Mr Coetzee never suggested that Mr Van
Zyl was a joint judgment debtor and did not make a
false
representation that influenced Mr Van Zyl to conclude the contract or
actually induced the conclusion of the contract. Mr
Van Zyl himself
conceded, during cross-examination that Mr Coetzee had not indicated
to him that he was personally liable for the
judgment debt.
[23]
Mr
Kleyn
properly
conceded that such a finding on the evidence is dispositive of the
first leg of the claim. Because the answer to the pleaded
case is
clear on the facts, it is unnecessary to consider and analyse the
juridical basis of each of the necessary elements in
any detail. I
might add, however, that I am unable to conclude that any
representation made by Mr Coetzee at the time was wrongfully
made.
The SCA has confirmed that the attorney-client relationship imposes a
duty on an attorney to advance the interests of his
client, even
where that course will cause harm to the opposite party; and in
general, an attorney will incur no liability to the
party on the
other side in doing so:
[9]
‘
In
broad terms, a solicitor’s duty to his client is to do for him
all that he can properly can, with, of course, proper care
and
attention. Subject to giving due weight to the adverb “properly”,
that duty is a paramount duty. The solicitor
owes no such duty to
those who are not his clients. He is no guardian of their interests.
What he does for his client may be hostile
and injurious to their
interests; and sometimes the greater the injuries the better he will
have served his client. The duty owed
by a solicitor to a third party
is entirely different. There is no trace of a wide and general duty
to do all that properly can
be done for him.’
[24]
The
question of wrongfulness in cases where a plaintiff relies on a
negligent misrepresentation inducing a contract (here the
acknowledgement
of debt) in circumstances when the attorney is
performing a duty owed to their client is, essentially, one of legal
policy.
[10]
The enquiry is
infused by constitutionally enshrined values and norms in South
Africa.
[11]
Mr Coetzee acted
on the basis of his instructions from HCL and explained his client’s
position during the discussion. Mr
Van Zyl could reasonably have been
expected to understand the context within which the acknowledgement
of debt was being concluded.
In the circumstances, it must be
concluded that Mr Coetzee’s representations to Mr Van Zyl were
not wrongfully made. To the
extent that the basis of the claim is an
omission, in the sense of Mr Coetzee’s alleged failure to
express full details in
respect of matters such as the balance due
and the legal basis for the acknowledgement of debt, our law does not
recognise a general
duty to act positively to remove from the mind of
a co-contracting party each and every wrong impression by disclosing
every fact
which may be material.
[12]
[25]
Even if I err in these respects, Mr Van Zyl’s
first claim also falls short in respect of the test for negligence.
Bearing
in mind the correspondence with Keevy, it has not been proved
that a reasonable person in the position of Mr Coetzee, acting as
HCL’s agent, would have foreseen the possibility of his
discussion misleading Mr Van Zyl in any way, so that he ought to
have
taken further steps to guard against this. As to causation, the
evidence establishes that Mr Van Zyl’s real reason for
entering
into the acknowledgement of debt agreement was his underlying
obligation to HCL, as well as his determination to stave
off the s
65A proceedings.
[26]
To conclude the point, the result is that the
purported misrepresentation upon which Mr
Kleyn
placed reliance, during closing arguments, never
occurred. The nature of the correspondence from Keevy and his firm,
who were again
engaged, subsequent to the signing of the
acknowledgement, supports this conclusion. Any other alleged
misrepresentations relied
upon in the pleadings were neither false
nor inaccurate. To the extent that a negligent misrepresentation was
made, Mr Van Zyl
has, on his own concessions, failed to prove the
various requisite elements of an application for cancellation of the
acknowledgement
of debt and / or the return of what has been paid in
terms thereof.
Undue influence
[27]
Mr Van Zyl claims in his particulars of claim that
Mr Coetzee repeatedly urged and influenced him to accept his advice
and, as a
result thereof, he signed the acknowledgement of debt. He
highlights the fact that he was unrepresented as being the basis for
the alleged undue influence.
[28]
To
succeed in a claim for undue influence, a plaintiff is typically
required to plead and prove that the other party had influence
over
him that weakened his resistance and made his will pliable, and that
this influence was used unscrupulously to prevail upon
him to enter
into a prejudicial transaction which otherwise he would have
avoided.
[13]
[29]
Mr Van Zyl’s lack of representation must be
understood in its proper context, as already described. He appears to
have received
independent legal advice in respect of the s 65A
proceedings and its aftermath both before and after the trip to court
in Jansenville.
He chose not to incur the expense of a representative
at the s65A proceedings, and also ignored Mr Coetzee’s
suggestion that
he take legal advice before signing the
acknowledgement of debt. The evidence in that respect is important,
reflecting Mr Coetzee’s
state of mind during his engagements
with Mr Van Zyl. The suggestion was particularly appropriate given
the correspondence from
Keevy during the previous few days and
supports the finding that Mr Coetzee was not over-eager to secure a
favourable outcome for
his client. It is also notable that Mr Coetzee
took the additional step of bringing Mr Van Zyl before the magistrate
to explain
the developments, including the signing of the
acknowledgement of debt, in his presence.
[30]
That
Mr Van Zyl had already proceeded to sign the acknowledgement of debt
without taking legal advice was, ultimately, his own decision,
rather
than due to any undue influence exerted by Mr Coetzee. He exerted his
own will in negotiating its terms, rather than merely
capitulating
when confronted with a draft prepared by Mr Coetzee. There is simply
no evidence to support the claim that Mr Coetzee
utilised any
influence he may have had in an unconscionable or unscrupulous
manner.
[14]
[31]
As to the contents of the document itself, there
could be no misunderstanding as to the terms of the acknowledgement,
given the
evidence that Mr Coetzee explained it, that he and Mr Van
Zyl discussed it at some length and that it was amended after
discussion.
There was no evidence that this engagement occurred in a
heavy-handed manner. As an aside, the subsequent correspondence
suggest
that little would have changed had he in fact reached Keevy
before appending his signature. In these circumstances, the outcome
in respect of the second claim is the same as the first.
[32]
Both counsel were of the view that the matter was
of sufficient nature to justify a costs order on scale B of the
applicable tariff.
I am in agreement with this approach.
Order
[33]
The following order is issued:
1.
The plaintiff’s claim is dismissed with
costs, with the costs of counsel to be taxed in accordance with Scale
B, as set out
in Uniform Rule 69(7).
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
29, 30, 31 July 2024
Delivered:
13 August 2024
Appearances:
For
the Applicant:
Adv
Kleyn
Chambers,
Pretoria
Instructed
by:
Arthur
Van Den Bergh Attorneys
Plaintiff’s
Attorneys
9
Bothrill Avenue
The
Reeds
Centurion
C/o
Netteltons
Attorneys
118A
High street
Makhanda
Email:
daisy@netteltons.co.za
For
the Respondent:
Adv
Brown
Chambers,
Makhanda
Instructed
by:
De
Jager & Lordan
Defendant’s
Attorneys
2
Allen Street
Makhanda
Email:
marius@djlaw.co.za
[1]
The
order was in the following terms:
1.
Payment in the amount of R253 448,39;
2.
Payment of interest on R253 448,39,
calculated from 1
st
August 2018 at a rate of 17% per annum compounded
monthly in arrears to date of payment;
3.
Payment in the sum of R2 679 303,46;
4.
Payment of interest on R2 679 303,46
calculated from 1
st
August 2018 at a rate of 17% per annum compounded
monthly in arrears to date of payment;
5.
The immovable property, remainder of the farm
Request No 234 in the Inkwezi Municipality, Division of Jansenville,
Province of
the Eastern Cape, held by Deed of Transfer T74211/1997,
be and is declared executable;
6.
Payment of costs of suit on the scale as between
attorney and own client together with interest thereon calculated at
the legal
rate of interest of a date 14 days from
allocator
to date of payment.
[2]
The
notice required a statement including:
a)
The assets and liabilities of the trust;
b)
The monthly / weekly income and expenditure of
the trust, supported by documentary proof inclusive of a statement
by the trust’s
accountants giving full particulars of its
emoluments and the latest financial statements;
c)
The latest Letters of Authority;
d)
Income statements;
e)
Statement of expenses and liabilities;
f)
Income tax assessments and returns for the years
2015 to 2022;
g)
Resolutions of meetings of the trustees for the
period 2015 to 2022;
h)
Bank statements of bank accounts held with every
financial institution for the period 2015 to 2022.
[3]
Crawford-Browne
v Manuel and Another
[2008]
ZAWCHC 29
para 38.
[4]
Hadjigeorgiou
and others v Barak Fund SPC Limited; In Re: Barak Fund SPC Limited v
Anchor Africa Holdings (Pty) Ltd and others
[2020]
ZAWCHC 38.
[5]
Van
Loggerenberg
Erasmus:
Superior Court Practice
(vol
2) (2
nd
Ed)
at D-124 to D-125.
[6]
Bayer
South Africa (Pty) Ltd v Frost
[1991] ZASCA 85
;
1991
(4) SA 559
(A) at 570.
[7]
Ibid.
[8]
Visser
et
al
Gibson’s
South
African Mercantile & Company Law
(8
th
ed)
(2003) (Juta) at 532. A judgment taken against either a principal or
a surety does not novate the original obligations; it
is an
additional confirmation or continuation of a previous obligation, so
as to perpetuate a right of action:
Sawdif
(Pty) Ltd v Dyke NO
[1978]
2 All SA 121 (A).
[9]
Road
Accident Fund v Shabangu
and
Another
[2004]
ZASCA 23
;
2005 (1) SACR 349
(SCA);
[2004] 2 All SA 356
(SCA)
(
Shabangu
)
para 11, quoting
Ross
v Caunter
[1980]
1 Ch 297
at 322 B–C.
[10]
Bayer
v Frost
above
n x at 570D–F and J.
[11]
Shabangu
above
n x para 14.
[12]
ABSA
Ltd v Fouche
[2002]
ZASCA 111
;
2003 (1) SA 176
(SCA);
[2002] 4 All SA 245
(SCA) paras 4,
5.
[13]
Ferrari
and others v Gunner
[2015]
JOL 32958
(SCA);
Hofer
and others v Kevitt NO and others
[1997] ZASCA 79
;
[1997]
4 All SA 620
(A) at 626.
[14]
Geromolou
Construction (Pty) Ltd v Van Wyk
2011
(4) SA 500
(GNP);
Preller
v Jordaan
1956
(1) SA 483
(A) at 492H;
Patel
v Grobbelaar
1974
(1) SA 532
(A).