SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of interest to other Judges: NO
Circulate to Magistrates: NO
Case no: 1356/2024
In the application for leave to appeal :
JOHANNES STEPHANUS VAN DEN HEEVER Applicant
(ID-Number: 8[…] )
And
VKB LANDB OU (PTY) LTD Respondent
(Registration number: 2015/ […])
In re:
VKB LANDB OU (PTY) LTD Applicant
(Registration number: 2015/ […])
And
JOHANNES STEPHANUS VAN DEN HEEVER Respondent
(ID-Number: 8[…] )
Coram: JP DAFFUE J
Heard: 18 FEBRUARY 202 5
Delivered: 18 FEBRUARY 202 5
This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand- down is
deemed to be 13 H00 on 18 FEBRUARY 2025.
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ORDER
1. The application for leave to appeal is dismissed with costs.
JUDGMENT
Daffue J
[1] On 28 November 2024 I granted an order in favour of the applicant , VKB
Landbou (Pty) Ltd (VKB) for payment of the amount of R1 350 220.20 plus interest
and a further order for the perfection of a Notarial Bond with leave to VKB to sell the
movable assets in terms thereof by public auction.
[2] This is an application by the unsuccessful respondent, Johannes Stephanus
van den Heever (Van den Heever) for leave to appeal to the Supreme Court of
Appeal , alternatively the full bench of this division.
[3] In this application V an den Heever relies on the following grounds :
3.1 the Credit Agreements and Acknowledgements of Debt (AOD’s ) are unlawful and
void as containing clauses prohibited by the NCA; 3.2 there are two conflicting judgments in this regard, to wit Serfontein and Another v
ABSA Bank Ltd and Others
1 (Serfontein) and Standard Bank of South Africa Ltd v
Wolmarans NO and Others2, constituting compelling reasons why leave to appeal
should be granted;
3.3 I failed to make any findings on the non- compliance with s s 89 to 92 of the
National Credit Act 34 of 2005 ( NCA) ;
3.4 I failed to find that VKB had unlawfully levied interest, fees and charges with
speci fic reference to Annexure VKB2;
3.5 I erred in rejecting his version on the papers;
1 2023 (5) SA 579 (FB).
2 (3949/2021) [2022] ZAFSHC 118 (16 May 2022).
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3.6 I failed to find that the credit agreements (AR3; VKB6; VKB7; VKB8; and VKB9)
are unlawful in falling foul of s s 90(2)(a) and (b) and s 3 of the NCA; and
3.7 I failed to find that Annexures VKB10 (Perfection Agreement); VKB10.1 (Written
Undertaking); VKB11 (Memorandum of Agreement); and VKB12 (AOD) constituted unlawful supplementary agreements in terms of the NCA.
[4] Van den Heever’s counsel stated during oral argument that leave should be
granted to the full bench of this division, bearing in mind that the Supreme Court of
Appeal had upheld Van Zyl J’s judgment in Serfontein . He also accepted that as a
result of that judgment, there are no conflicting judgments anymore and thus no
compelling reasons why leave to appeal should be granted.
[5] It should be mentioned that, far from what is now alleged by Van den Heever
as grounds of appeal, he raised the following defences in his answering affidavit ,
which is also evident from the written heads of argument by his counsel . I summarise
these:
a. a deficiency in the application for membership;
b. the cession between VKB as cessionary and the cedent , i.e. the locus standi
of VKB was placed in dispute;
c. what VKB’s claims really consist of;
d. VKB’s attempt s to enforce its rights in terms of the cession;
e. VKB’s claim is not liquidated ;
f. there is a factual dispute.
[6] The alleged unlawfulness of the source document s relied upon by VKB due to
non-compliance with the NCA was neither raised in the answering affidavit , nor
argued before me. No factual basis was l aid for these defences now relied upon.
Such failure should be fatal for the application for leave to appeal . The parties did not
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canvass these, either in their affidavits , or in argument. The only reference to
unlawfulness or voidness is found in paragraph 66 of Van den Heever’s counsel’s
heads of argument. It was mentioned, but not even argued in court that the
‘purported entitlement to sell [Van Der Heever ’s] corpor eal movable assets ’ would
‘constitute an unenforceable agreement which is void ab initio for want of compliance
with the peremptory provisi ons of the National Credit Act, 34 of 2005’ . I specifically
did not make any order in respect of the Perfection Agreement attached to the
founding affidavit, but in terms of the Notarial Bond attached as Annexure VKB 4 to
the founding affidavit.
[7] I adjudicated the Wolmarans case
3 referred to in the application for leave to
appeal. That matter has been argued in the Supreme Court of Appeal, but judgment was reserved. In any event, the facts in that case are not on par with the facts in
casu .
[8] Van den Heever’s counsel relies on the judgment by Van Zyl J in Serfontein
which was upheld by the Supreme Court of Appeal in Absa Bank Limited v Johan
Serfontein and Another .4 The facts in Serfontein are totally distinguishable from the
facts in casu . Van den Heever was not required or induced to sign any
supplementary agreements as was the case in Serfontein. As mentioned, similar
defences were not raised before me and I was not called upon to decide these
issues . In any event, I am satisfied that no agreement s relied upon by VKB , and on
which I came to my conclusion, excluded the NCA specifically and/or were entered
into contrary to any of the provisions of the NCA . Neither the Written Undertaking of
27 October 2021, n or the AOD of March 2023 were ever argued to fall foul of the
NCA. The same applies to the 2017 Credit Agreement, the Standard Agreement and
the Facility Letter of 16 April 2021. I am satisfied that no other court will come to a
different conclusion.
[9] The Notarial Bond , Annexure VKB4 , is also clearly not in conflict with the
NCA. This Notarial Bond is not supplementary to any credit agreement and does not
deal with the same subject matter. It deals with security. The validity of the Notarial
3 Stand ard Bank of South Africa Ltd v Wolmarans NO and Others (3949/2021) [2022] ZAFSHC 118 (16 May
2022) .
4 (740/2023) [2024] ZASCA 11 (10 February 2025).
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Bond was never an issue. Also, there cannot be any argument about an unlawful
parate executie.
[10] I am satisfied that Van den Heever has not mad e out a case to be granted
leave to appeal .
[11] The following order is made:
1. The application for leave to appeal is dismissed with costs.
JP DAFFUE J
Appearances
For applicant : Adv R van der Merwe
Instructed by: Honey Attorneys
Bloemfontein.
For respondent : Adv JJ Pretorius
Instructed by: Gerrit Coetzee Attorneys Inc
c/o Muller Gonsior Inc
Bloemfontein.