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REPUBLIC OF SOUTH AFRICA


IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

HCA CASE NO: HCAA 31/2023
A QUO CASE NUMBER: 3931/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED .
DATE: 22.01.2025
SIGNATURE:

In the matter between:

J & R HARTMAN BOERDERY CC FIRST APPELLANT
(REG. NO: 1998/023403/23)

RENE ELIZABETH HARTMAN SECOND APPELLANT
(ID NO: 6 […])

GERHARDUS LOURENS HARTMAN THIRD APPELLANT
(ID NO: 7 […]))

JOHAN CHRISTIAAN RUDOLF HARTMAN FOURTH APPELLANT
(ID NO: 4 […])

-and-

THE LAND AND AGRICULTURAL RESPONDENT
DEVELOPMENT BANK OF SOUTH AFRICA

Delivered : 22 January 2025. This judgment was handed down
electronically by circulation to the parties' legal representatives by
email. The date and time for hand -down of the judgment is
deemed to be 22 January 2025 at 10h00.

Coram : M. G. Phatudi JP et al. Diamond AJ , Bresler AJ


JUDGMENT


BRESLER AJ:

Introduction:

[1] The matter came before court as an Appeal against the judgment and order of
the court a quo delivered on the 26th of January 2023.

[2] The Appellants raised inter alia the following g rounds of Appeal:

2.1 There is a material factual dispute in relation to the account claimed;

2.2 The Respondent failed to comply with prescripts of Uniform Rule 46A
and, therefore, the court a qua failed to provide the necessary judicial
oversight in a matter where rights in terms of Section 26(1) of the
Constitution are implicated. Consequently , the Court a qu o found that the
Third Appellant will still therefore be able to accommodate the Second and
Fourth Appellants and they will not be rendered homeless if the execution is
ordered, without any primary factual evidence from which the inference could
be made.

2.3 The Respondent failed to prove its locus standi in that the " written sale
agreement regarding the sale, cession and delegation by Suidwes " has not
been evidenced and the " duration of the sale agreemen t" has not been
provided.

[3] The Appeal is opposed by the Respondent. An application to reinstate the
appeal was launched by the Appellants. The Respondents recorded that the
application to reinstate the Appeal is not opposed, and as such the order reinstating
the appeal was accordingly granted.

Issues that require determination:

[4] This Court is called upon to determine if the Respondent was entitled to the
relief granted by the Court a qu o having regard to the grounds raised by the
Appellants in their Notice of Appeal. More specif ically, this Court must determine if
sufficient consideration were given to the procedural requirements of Uniform Rule
46A, and if the Respondent's version should have been preferred on a balance of
probabilities.

In the Court a quo :

[5] In the court a quo the Respondent applied for judgment to be granted against
the Appellants, jointly and severally for:

5.1 Payment in the amounts of respectively R15,002,558 together with
interest at a rate of 9.5% per annum from the 31st of March 2 021,
R911,968.51 together with interest at a rate of 10.75% from 31 March 2021
and R1,152,497.31 together with interest at a rate of 9.75% from 31 March
2021.

5.2 An order in terms of which the immovable properties registered in the
name of the First App ellant better known as:

5.2.1 Portion 7 (a portion of Portion 3) of the Farm Mooigelegen 140,
registration Division K.S., Limpopo Province, measuring 124,7561
hectares, held by Deed of Transfer T129641/1998; and

5.2.2 Remaining Portion of Portion 2 of the farm Mooigelegen 140,
registration Division K.S., Limpopo Province, measuring 267,2217
hectares, held by Deed of Transfer T129641/1998

be declared specially executable in favour of the Respondent.

5.3 An order in terms of which the immovable proper ty registered in the
name of the Third Appellant better known as:

5.3.1 Portion 9 (a portion of Portion 3) of the Farm Mooigelegen 140,
registration Division K.S., Limpopo Province, measuring 77,0879
hectares, held by Deed of Transfer T 129640/1999

be declared specially executable in favour of the Applicant.

5.4 That the property referred to in paragraph 2 and 3 above be sold by the
Respondent or its appointed agent in conjunction with the Sheriff of Court by
public auction or private treaty;

5.5 Costs of suit on a scale as between attorney and client.

The Facts:

[6] The Respondent's claim is essentially premised on the following averments:

6.1 On the 26th of August 2013, the Respondent concluded a written sale
agreement regarding the sale, cession and delegation by Suidwes of its right,
title and interest in and to its existing and future book debts. This included the
debt owed by the Appellants to Suidwes.

6.2 During or about October 2017, the First Appellant applied for, and was
granted, a long -term loan with the predecessor of the Respondent (Suidwes).
It was agreed that certain immovable properties will be held as security for the
due fulfilment of the obligations in terms of the long -term loan.

6.3 The First Appellant was oblig ed to repay the long -term loan in annual
installments of R1,830,469.63, of which the first installment was payable on or
before 31 July 2018 and thereafter annually on the corresponding day, with
the last payment to be made on or before 31 July 2031.

6.4 Subsequent to the conclusion of the long -term loan agreeme nt and the
registration of the required securities, Suidwes loaned and advanced,
alternatively, made credit facilities available to the First Appellant, in the
amount of R11,600,000.00 in order to consolidate its then existing credit
facilities.

6.5 During or about September 2018, the First Appellant, represented by
the Second Appellant, duly authorized thereto, applied for a postponement in
respect of the then outstanding balance of the installm ent that was due on 31
July 2018 in terms of the long term loan agreement. The First Appellant's
application for postponement (or carry term loan) was granted.

6.6 During or about October 2018, the First, Third and Fifth Appellants,
duly represented and in person, applied for a summer production credit facility
in respect of the First, Third and Fifth Appellants' 2019 summer production
input costs. A summer production credit facility was accordingly granted to
them.

6.7 Subsequent to the conclusion of the aforesaid agreement and the
provisions of the required securities, Suidwes loaned and advanced,
alternatively made credit facilities available to the First, Third and Fifth
Appellants in the amount of R1,300,000.00.

6.8 The First Appellant failed to make payment of the installments that
were due and payable by itself in terms of the provisions of the long -term loan
agreement and as at 1 April 2021, it was in arrears in the amount of
R 3,776,326.86.

6.9 The First A ppellant also failed to make payment of the carry term loan.
This was due on or before 31 December 2018 and as at 1 April 2021, the
amount of R911,968.51, remained outstanding.

6.10 The First Appellant in addition also failed to repay its 2019 summer
production credit facilities on or before 1 October 2019 and as at 1 April 2021,
the amount of R1,152,497.31 remained outstanding.

6.11 Written letters of demand were dispatched to the First Appellant.
Notwithstanding demand, the alleged breach was n ot rectified, and the
Respondent was therefore entitled to claim judgment against the Appellants.

6.12 As to the executability against the immovable properties of the First
and Third Appellants, the Respondent stated that the properties registered in
the name of the First Appellant, being a juristic entity, cannot per se be
regarded as a primary residence. The Respondent however ex abudante
cautela dealt with various aspects as contemplated in Rule 46A of the Uniform
Rules of Court, including but not limi ted to the value of the properties, the
determination of a reserve price, if the property constitutes a primary
residence, the particulars of the occupants and their circumstances, the
payment history of the Appellants and the potential alternative methods of
collecting the debt.

[7] The Appellants' Answering affidavit was delivered on the 4th of November
2021. The Answering affidavit raises the following crisp issues relevant to the current
proceedings:

7.1 The Respondent relies on several written agre ements in the Founding
affidavit, such written agreements not being annexed to the Founding affidavit.
As such the cause of action is incomplete.

7.2 The Appellants failure to make payment timeously is undisputed. They
denied having received statements f rom Suidwes and can therefore not verify
the correctness of the outstanding balance.

7.3 The properties that the Respondent sought to declare specially
executable constitutes the primary residences of the Second and Fourth
Appellants (Portion 9) and the Third Appellant (Portion 7). The Respondent
was therefore obliged to provide evidence o n the market value, the local
authority valuation, the amount owing to the local authority and to serve the
application on the Local Authority. The application is therefore materially
defective.

7.4 The First Appellant conducts business as a commercial fa rm. It has
continuing farming activities and expects to obtain substantial yield in respect
of its current crops in the near future. The amount owed to the Respondent
(insofar as they may be found to be owing) may be liquidated within a
reasonable time.

7.5 The prejudice to be suffered by the First Appellant is immense. It would
entail the loss of numerous jobs and also the residences of farm workers. In
addition, the Second and Fourth Respondents have no alternative
accommodation and will be left homeles s as a result of this order.

[8] In reply, the Respondent submitted inter alia that no serious disputes of fact
are raised and any uncertainty about the outstanding balance is addressed by
means of the updated Certificate of Balance.

[9] It is apposite to note that the matter was argued in the court a quo on the 23rd
of November 2022. Judgment was delivered on the 25th of January 2023.

[10] The following appears from the judgment of the Court a quo :

10.1 The Court a quo correctly noted the history of the matter, the
respective agreements concluded between the parties and the mortgage
bonds registered over the immovable properties.

10.2 The Court a quo correctly stated that the Appellants in their answering
affidavit admitted they did not make paym ent in terms of the agreement.1 The
learned Judge, furthermore, correctly found, with reference to the terms of the
agreement that the respective certificates of balance serves as prima facie
proof of the amount of liability.2

10.3 The Court a quo state d the following in paragraph [19] that is of
particular importance herein:

'[19] For a period of almost two years the First Respondent did not
make payments towards its loan agreements, did (not) complain to the
applicant or Suidwes that it was not receiving monthly statements. The
first respondent in its answering affidavit is m erely making a bare
denial of its indebtedness towards the applicant. It had failed to
disclose fully the nature and grounds of its defence, and the material
facts relied upon'.

10.4 The Court a quo furthermore explicitly considered the consequences of
Section 26(3) of the Constitution in lieu of declaring the immovable
properties specially executable. The learned Judge concluded that the
Appellants failed to submit sufficient evidence to trigger the protection of
Section 26(3). This includes the fact th at there is no indication that the Second

1 Paragraph (14] of the judgment
2 Paragraph (16] of the judgment
and Fourth Respondents are indigent3 and that no evidence was placed
before court that they are poor.4 It is furthermore evident that the learned
Judge found the explanation with regards to the alleged substantial yield in
respect of the current crops to be unsubstantiated as more than a year has
passed, and no payment was made.

[11] As there was also no evidence before court that the Respondent is abusing
the process, judgment was accordingly granted. On a thorou gh analysis of the
judgment, it is clear that the Appellants fell short of what is required from them in
rebuttal of the Respondent's claim.

The Applicable Legal Principles:

[12] On the 13th of June 2022 the Supreme Court of Appeal (SCA) delivered
judgment in the seminal decision of Bestbier and Others NNO v Nedbank Ltd .5
The critical importance of this decision is the approach taken by the SCA on the
application of Rule 46A of the Rules to properties owned by a Trust. To appreciate
the applicability of the Bestbier decision to the facts in casu , a succinct analysis of
the reasoning of the SCA is appropriate.

[13] The Constitution makes provision for justiciable socio -economic rig hts that
includes the right to have access to adequate housing enshrined in Section 26
thereof. The underlying rationale of Rule 46A is to create a procedural structure to
give effect to this constitutional right. The rule consequently came into effect on the
22nd of December 2017, in response to the conflicting decisions rendered by the
respective Courts as to the factors that should be considered when exercising
judicial oversight over orders of execution against residential immovable properties.

[14] The Supreme Court of Appeal explicitly stated that the aim of the rule is to
assist the Court in considering whether the Section 26 Constitutional rights of a
judgment debtor would be violated if his/ her house is sold in execution. The rule,

3 Paragraph [25] of the Judgment
4 Paragraph [28] of the Judgment
5 2023 (4) SA 25 (SCA)
after al l, only lays the procedural groundwork and is not substantive law. The
requirement of judicial oversight must be seen against a history of forced removals
and racist evictions during apartheid and the consequent need to protect se curity of
tenure.

[15] Of particular importance to the facts in casu is the following extract from the
reasoning of the SCA:

'[24] The High Court correctly found that the appellants' rights to adequate
housing were not engaged or compromised. The appli cation to declare the
property executable was brought after numerous attempts by the respondent
to obtain payment from the appellants, who did not dispute the debt and even
consented to the judgment. However, the appellants failed to show how their
constit utional rights to adequate housing might be impacted. '

[16] And further:

'[27] Due regard must be had to the impact that the sale in execution is likely
to have on vulnerable and poor beneficiaries who are occupying the
immovable property owned by th e Judgment debtor, who are at risk of losing
their only homes. Given the provisions of rule 46A, I can see no reason why
the trust beneficiaries who fall into the Jaftha kind category and occupy the
trust's immovable property as a primary residence (and ar e thus likely to be
affected by an order declaring the immovable property specially executable)
should be barred from the protection of rule 46A merely because the property
in question is owned by a trust.'

[17] The SCA then aptly summarises the crux as follows:

'[32] To sum up, the object of judicial oversight is to determine whether rights
in terms of s 26(1) of the Constitution are implicated, and such determination
cannot be made without the requisite judicial oversight. In the present case, I
find that rule 46A was applicable despite the judgment debtor being a trust.
However, judicial scrutiny based on the facts of the case reveals that the
applicability of rule 46A cannot avail the appellants because they have failed
to show that they fall unde r the Jaftha -kind category of the homeowner. Thus,
there is nothing to show that if rule 46A was applied, default judgment and an
order declaring the immovable property specially executable would not have
been granted. It is for this reason that the appeal falls to be dismissed with
costs.'

[18] Essentially, in this Court's view, the Appellants were obliged to show, in the
first instance, that they are of the Jaftha -kind before the provisions of Rule 46A
would have to be considered bearing in mind that, at the time of the issuing of the
proce edings, the Bestbier decision had not yet seen the light. As no indication were
given, save for an unsubstantiated allegation that they would be rendered homeless,
insufficient evidence served before the Court a quo to find that the said Appellants
enjoyed the protection envisioned by the Bestbier decision. The Appellants had
furthermore failed to show that, had the procedural prescripts of the rule been
applied strictly, judgment would not have been granted against the Appellants.

[19] This must be und erstood against the backdrop that it is evident from the
judgment of the court a quo that the protection envisioned in Section 26(3) of the
Constitution was indeed considered and due thought were given to the prescripts of
Rule 46A. In our view, the court a quo was not remiss in their duty in this regard.

[20] This ground of appeal must, therefore, fail. Much of what was argued by the
Appellants related to non -compliance with the procedural aspects of the rule. In this
Court's view, no substantial prejudi ce has however been shown to exists flowing
from the alleged non -compliance in as far as the SCA pertinently stated that Rule
46A merely govern the procedural aspects. As stated herein before, at the time of
the delivery of the Judgment, the SCA judgment w as the prevailing authority on
matters of this nature. The Appellants clearly failed to show that they fall within the
vulnerable group of persons that should enjoy constitutional protection. Sufficient
consideration were given as to the procedural aspects of the Rule and the exercise
of the Court a quo 's discretion in this regard cannot be faulted. This Court is bound
to follow existing precedent in matters of principle and the law.

[21] It stands to be noted that the findings of the SCA pertaining to th e category of
persons that Rule 46A aims to protect, was consequently confirmed by the
Constitutional Court in the matter of Bestbier and others v Nedbank Limite d6.
Noticeably, the Constitutional Court also stated that sufficient protection exists in l aw
in respect of farm workers and tenants. This Court is therefore satisfied that, even if
the current prevailing precedents are considered, the Appellants' appeal on this
ground cannot succeed.

[22] The remaining grounds of appeal relates to the allegat ion that the Respondent
lacked the requisite locus standi to institute the proceedings before the court a quo
and the alleged dispute regarding the outstanding balance.

[23] Having regard to the version of the Appellants set out in their Answering
affida vit delivered in the Court a quo , neither of these issues raised a bona fide
dispute of fact. The Court a quo correctly referred to the well -known decision
rendered in the case of Wightman t /a JW Construction v Headfour (Pty) Ltd and
Another7 where the foll owing was stated:

'A real genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There
will of course be instances where a bare denial meets the requirements
because there is no other way open to the disputing party and nothing more
can be expected from him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party and no basis is
laid for disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing party m ust necessarily process knowledge
of them and be able to provide an answer (or countervailing evidence) if they
be true or accurate, but instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding t hat the test
is satisfied. I say 'generally' because factual averments seldom stand apart
from the broader matrix of circumstances all of which needs to be borne in

6 2024 JDR 1551 (CC)
7 2008 (3) SA 371 (SCA) at para 13
mind when arriving at a decision. A litigant may not necessary recognise or
understand the nuances of a broad or general denial as against a real attempt
to grapple with all relevant factual a llegations made by the other party. But
when he signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and will only in exceptional circumstances be
permitted to disavow them. There is thus a serious duty imposed upon a legal
adviser who settles an answering affidavit to ascertain and engage with facts
which his client disputes and to reflect such disputes fully and acc urately in
the answering affidavit. If that does not happen it should come as no surprise
that the court takes a robust view on the matter.'

[24] The Court a quo observed that the Appellants did not allege that their failure
to service the loans for almos t two years was in protest of not receiving monthly
statements. Their unsubstantiated denial was thus deemed a delaying tactic. This
Court is in agreement with the view expressed by the Court a quo. The repayment
terms of the loan agreements were within t he knowledge of the Appellants, and they
could have presented a calculation as to the amount that they allege were due. This
was not done. The court a quo thus correctly accepted the evidence presented by
the Respondent by means of the certificate of bal ance.

[25] As to the allegation of lack of locus standi , again the Appellants elected to
merely allege that it is not within their knowledge. If there was a genuine concern,
one would have expected that reasonable steps would have been taken to procure
the physical documents. The Appellants did not do so. The court a qu o therefore
correctly took the 'robust approach' and accepted that the Respondent had the
requisite locus standi. No basis was laid in the evidence creating a reasonable
assumption that the locus standi of the Respondent is denied on factual grounds.

[26] Premised on the aforesaid analysis of the parties' versions and the applicable
legal prescript, it is clear that the Appellants' appeal cannot succeed, and stands to
be dismissed.

Costs:

[27] There is no reason why the cost order should not follow the outcome of the
proceedings. In this case, the Appellants failed in their bid to overturn the judgment a
quo they sought to appeal against.

Order:

[28] In the result the following orde r is made:

27.1 The Appeal is dismissed with costs of two Counsel on Scale C
where so employed.



M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I concur,


MG PHATUDI JP
JUDGE PRESIDENT OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I concur,

G DIAMOND AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE


APPEARANCES:

FOR THE APPELLANTS : Adv. HP Wessels

INSTRUCTED BY : Dawie Beyers Attorneys Inc
Pretoria
dawie@dawiebeyers.co.za

FOR THE RESPONDENT : Adv. PG Cilliers SC
Adv. C Richards

INSTRUCTED BY : Leahy Attorneys Inc
Pretoria
denis@leahyattorneys.co.za

DATE OF HEARING : 16 August 2024
DELIVERY DATE : 22 January 2025