THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 20261/2024
In the matter between: Before the Hon Madam Justice Slingers
Hearing: 12 March 2025
Judgment Delivered: 16 May 2025
BLUE HOUSE INVESTMENTS (PTY) LTD
(Registration no: 2022/383492/07)
and
BAREND DANIEL UYS
VILLAVIEW DEVELOPERS CC (in business rescue)
(Registration no: 2006/132097 /23)
HERMAN BESTER N.O
JACOLIEN FRIEDA BARNARD N.O
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
This judgment is handed down electronically by circulation to the parties' legal representatives' email
addresses . The date of hand-down is deemed to be 16 May 2025.
JUDGMENT
SLINGERSJ
Introduction
[l] The applicant, Blue House Investments (Pty) Ltd ('BHI') is a private company
with limited liability which sources funding and provides finance. The first
respondent is a property-developer businessman ('Uys') who uses the second
2
respondent , Villaview Developers CC ('Villaview') for sectional title property
developments in Mossel Bay.
[2] This matter arises from the contractua l relationship between BHI, Uys and
Villaview and the various agreements they concluded.
(3] When the application was instituted and heard, BHI sought two categories of
relief. The first category pertained to Uys' member's interest in Villaview and the
second category pertained to the business rescues proceedings instituted by Uys
in respect of Villaview.
[4] Subsequent to the hearing of BHI, the applicant filed an application for leave to
abandon the relief pertaining to the business rescue proceedings instituted in
respect of Villaview. Furthermore, the court was advised that BHI no longer
sought a costs order against Villaview and the third and fourth respondents. The
third and fourth respondents were cited as the business rescue practitioners
appointed to supervise the business rescue proceedings of Villaview.1
[5] In the explanatory affidavit filed in support of the application to abandon the
business rescues related relief, BHI informed the court that:
(i} it attended a meeting convened by the business rescue practitioners on 12
March 2025;
(ii) Villaview's creditors which included BHI voted in favour of accepting the
business rescue plan;
1 No substantive relief was sought against the fifth respondent who did not participate in the proceedings.
3
(iii) in BHl's estimation , the adoption of the business rescue plan would yield a
better outcome for Villaview's creditors compared to any other scenario,
including the setting aside of the business rescue plan; and
(iv) it was of the view that the setting aside of the business rescue
proceedings would be counterproductive and would be contrary to
interests of Villaview's creditors, including the interests of BHI.
[6] The third respondent filed an affidavit in support of BHl's application to abandon
the relief pertaining to the business rescue proceedings .
[7] As the relief pertaining to business rescue has been abandoned, the court need
only determine the relief pertaining to Uys' members interest in Villaview. In this
regard, BHI seeks an order declaring that:
1. BHI owns, holds and has executive tile to all of the members' interest in
Villaview;
2. BHI is entitled to forthwith to:
2.1 procure the registration of all or any of Uys members' interest in
Villaview into BHl's name or that of its nominee;
2.2 realize Uys' member's interest in and/or claims against Villaview
either by public auction or by private treaty, as BHI may in its sole
and absolute discretion deem fit, or to take over the member's
interests and/or claims at fair value as agreed or as determined by
the auditors of the applicant (who shall act as an expert and not as
an arbitrator);
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2.3 apply the net proceeds of the sale, after all expenses of realization ,
to or set off the purchase price payable by it for the member's
interest against Villaview's indebtedness to SHI, with the shortfall to
remain as a debt due by Villaview to SHI; and
2.4 act as Uys' attorney and agent his name, place and stead,
irrevocably and in rem suam, to sign and execute any of its
abovement ioned rights.
[8] SHI furthermore sought an order directing Uys and Villaview to take any and all
steps that may be required in order to give effect to paragraph 7.2.1 on demand.
The agreements
[9) BHI and Villaview concluded two loan agreements, two addenda to one of the
loan agreements , two suretyships, a number of mortgage bonds and a pledge
and cession agreement. The details of these agreements are set out below.
[10) On 26 January 2022, Uys executed a written suretyship in favour of SHI, in terms
whereof, Uys bound himself as surety in solidum for and co-principal debtor
jointly and severally together with Villaview for the due payment of all or any
monies which Villaview may at any time owe to BHI in relation to the first loan
agreement that would be concluded on 27 January 2022. However, this was
subject to the limit of R50 000 000.
[11) The first loan agreement was concluded on 27 January 2022 in terms whereof
BHI agreed to loan and advance R40 000 000 to Villaview for purposes of a
property developmen t. The term of this loan was thirty six months with interest to
accrue at a rate of four point five percent (4.5%) per month calculated daily. The
5
monthly instalments payable amounted to R70 000 which was due on the
fifteenth of every month. The first installment was due on 15 March 2022.
[12] As security for the first loan of R40 000 000 Villaview, duly represented by Uys,
agreed to register a covering mortgage bond to the same value of the loan over
erf 21106 and Villaview would ensure that erf 21106 and its developme nt would
be ensured for a reasonable replacement value through Success Brokers.
[13] Uys was also required to pledge and cede his members' interest in Villaview to
BHI as well as to execute a suretyship . A minimum amount of R30 000 000
would be paid to BHI on completion of the Mossel Bay development undertaken
by Villaview.
[14] Uys and Villaview represented to BHI that the intended development was
feasible and that it would remain in its current form without any alterations to the
applicable plans that could potentially delay the development or impact
negatively on its feasibility.
[15] It was further agreed that should Villaview or its related parties dispose of any
property over which BHI had security in the form of a first mortgage bond, that
the proceeds thereof were to be paid to BHI to reduce the outstanding balance of
the loan. ln the event of Villaview failing to make timeous payment of the
minimum monthly instalment, the interest rate would increase to six percent (6%)
per month until such time that the outstanding capital amount was settled.
[16] Clause 8.1 of the loan agreement provided that:
'Should the Borrower fail to comply with or carry out any of the terms or
conditions to this agreement , or to meet any obligation or liability to the Lender
on the due date thereof, or to pay on demand any amount which may be lawfully
6
claimed by the Lender from the Borrower in terms of this agreement for more
than 7 (SEVEN) DAYS after written notification by the Lender, addressed to the
Borrower calling upon the Borrower to rectify the breach, then and in any such
event the Lender is entitled to in its entire discretion to regard the total amount of
the Borrower's liability in terms of this agreement to be immediately lawfully due
and payable and the Lender is entitled to recover the same immediately together
with all interest and other amounts which may be owing by virtue and in terms
hereof. This may involve calling-up; enforcing and/or proceeding with
transactions ; sales and bonds including but not limited to those provided in
Section K of the Schedule. The Lender's remedies in terms of this paragraph are
without prejudice to any other remedies to which the Lender may be entitled in
law.'
[17] In terms of the first loan agreement, Villaview would be in breach and default if it
inter alia committed an act of insolvency.
[18) On 28 January 2022 BHI and Uys concluded an agreement in terms whereof Uys
pledged and ceded to BHI one hundred percent (100%) of his member's interest
and loan account in and to Villaview. The terms of the pledge and cession
agreement included:
(i) as security for Villaview's present and future obligations to BHI from
whatsoever cause, Uys ceded, transferred assigned and/or pledged, as
the case might have been, his right, title and interest in his members'
interests in and claims against Villaview;
(ii) Uys undertook to deliver to BHI the original CK form in relation to Villaview
together with any certificate of interest, and a duly signed and completed
CK2 form wherein the name of the transferee has been left blank;
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(iii) Uys undertook to immediately inform BHI if there was a material
deterioration in the financial condition of Villaview or if Villaview became
financially distressed -as defined in the Companies Act, Act 71 of 2008-or
if it was reasonably likely to become financially distressed within any
immediately ensuing we month period;
(iv) undertook not to petition or apply or vote in favour of or convene or permit
Villaview to convene a meeting of its members for the purpose of
considering any resolution for, of the taking of any other steps necessary
for the bringing of an application or the filing of any documents with the
court or any registrar for its winding up, judicial management , dissolution
or commencement of business rescue proceedings , or the seeking of
relief under any applicable bankruptcy, insolvency , company or similar law
whilst any amount is owing to BHI by any debtor, unless BHI has
specifically approved in writing to any such meeting being held or steps
being taken and any conditions to which such approval in subject have
been fulfilled to the BHl's satisfaction ; and
(v} the parties to the pledge and cession agreement agreed that if, at any time
during the pledge and cession, BHI became entitled to exercise its rights
under the pledge and cession, Uys vis a vis Villaview waived any and all
rights which he many have had as a member of Villaview and undertook
that he would not himself, nor would any third party on his behalf attend
any general meeting of Villaview or exercise any voting rights attaching to
the pledged shares.
[19] On 1 June 2022, BHI and Villaview concluded a written addendum to the first
loan. In terms of this written addendum:
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(i) BHI loaned and advanced a further R30 000 000 to Villaview. This
monies were loaned and advanced for the development of Die Punt
Development ('DP1 '); and
(ii) the increased capital amount plus interest was repayable in monthly
instalments of R100 000 which was due on the 15th of every month, with
the first increased instalment being payable on 15 June 2022.
[20] A first cover mortgage bond to the value of R30 000 000 would be registered
over DPI. Villaview would be obliged to cause DP1 properties and its
development to be insured for a reasonable replacement value through Success
Brokers.
[21] Uys and Villaview represented that the intended developments of View a Bay
and DP1 were feasible and they would remain in their current form without any
alternations to the applicable plans which might potentially delay the
developments or negatively impact on their feasibility.
[22] Furthermore, a minimum amount of R15 000 000 would be paid to BHI on
completion of the development.
(23] As at 31 March 2022 the amount outstanding in respect of the first loan was
R21 050 317.34 and at 30 April the amount outstanding was R25 230 393.00.
[24] On 22 February 2023, BHI and Villaview concluded a second written loan
agreement in terms of which BHI advanced and loaned R30 000 000 to Villaview
for purposes of a property development known as Die Punt 2 ('DP2').
9
[25] Save that a different capital amount and a different monthly instalment was due,
the terms of the second loan were substantially similar to the terms of the first
loan.
[26] The second loan was accompanied by a second suretyship in terms whereof
Uys' exposure to BHI for Villaview's liabilities to BHI increased to a capital sum of
R 100 000 000 on terms substantially similar to those of the first suretyship.
[27] On 1 November 2023 BHI and Villaview concluded a further written addendum to
the first loan. In terms hereof:
(i) it was recorded that the total outstanding balance owing by Villaview to
BHI at 31 October 2023 was R111 641 031.87; and
(ii) the interest rate payable in terms of the first loan was reduced to 2. 75
percent per month, calculated daily and compounded monthly witn effect
from 1 March 2023.
The Breaches
[28] It is undisputed that since 18 September 2023, Villaview failed to honour its
obligations to pay its monthly instalments of R150 000.00 to BHI. By 31 March
2024 Villaview was indebted to BHI in relation to the View a Bay Development in
the amount of R169 783 339.81.
[29] Thereafter, Uys purportedly passed a resolution to commence business rescue
proceedings of Villaview without BHl's consent.
[30] On 23 April 2024 BHl's attorneys addressed correspondence ('the
correspondence') to Uys and copied in Villaview in respect of Villaview'
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breaches of the loan agreements and put it on terms to remedy same.2 One of
the breaches identified by BHI was the repeated failure to pay the minimum
monthly instalments. This correspondence recorded that Uys stood surety for
the obligations of Villaview to BHI to a maximum extent of R100 million and
consequently that Uys was indebted to BHI in the amount of R100 million.
[31] The correspondence went on to remind Uys that he provided a pledge and
cession of his member's interest and loan accounts in Villaview to BHI and that
he was in breach of his undertaking that Villaview would not breach the
provisions of any agreement to which it was a party. Consequently, in
accordance with clause 5(4) of the pledge and cession agreement , and as a
result of Uys' breach, BHI was entitled, without obtaining a court order to procure
the registration of his member's interest into BHl's name or the name of its
nominee.
[32] Clause 5(4) of the pledge and cession agreement provides that:
'The parties acknowledge that the obligations of the pfedgor secured by this
pledge and cession are obligations of a commercial nature and that the security
afforded in terms hereof are fair, reasonable and necessary to ensure that the
creditor does not suffer unfair commercial prejudice. Accordingly if at any time
during this pledge and cession the pledgor commits a breach of any of its
obligations set out herein, or if the creditor becomes entitled to claim payment
from the pledgor in respect of any of the obligations for which this pledge and
cession has been given, the creditor shall be entitled, and the pledgor hereby
authorizes the creditor irrevocably and in rem suam in its sole and absolute
2 Annexure FAS on page 77
1 l
discretion without reference to the pledgor and without first obtaining an order of
court:
5.1
5.2
5.3
5. 4 to procure the registration of all or any of the pledged shares into its name
or the name of its nominee, or any other person, and to exercise any
voting rights attached thereto in such manner as it may in its sole and
absolute discretion deem fit; ... '
[33] Uys was informed of BHl's intention to implement the pledge seven days after he
received the correspondence. Uys was also informed that he may seek the
protection of a court if, upon any just ground, he could show that the
implementation of the pledge was prejudicial to him and his rights.
[34] At this stage Villaview was indebted to BHI in the amount of R215 165 719.55
and by 3 May 2024 it was indebted to BHI in the full amount outstanding in terms
of the first and second loans and Uys was indebted to BHI in the amount of
R100 million.
[35] As Uys failed to remedy his breach, as called upon to do by the correspondence,
BHI perfected the pledge and cession thereby taking over Uys' member's interest
in Villaview. However, when BHI sought to have Uys' member's interest in
Villaview registered in its name, Uys was uncooperative and the fifth respondent
would not transfer ownership of Uys' member's interest without a transfer form
signed by Uys or a court order.
12
[36] BHI instituted these proceedings to give legal effect to the pledge, more
particularly to obtain declaratory relief pertaining to Uys' member's interest in
Villaview.
[37] The application is actively opposed by Uys who raised various in limine points
which was not pursued during argument. Furthermore, the in limine points
primarily pertained to the relief sought in respect of the business rescue
proceedings which no longer need to be determined as a result of the applicant
abandoning this relief.
(38] In opposing the application Uys contended that there was a material factual
dispute to which the applicant was alive when the application was instituted.
While Uys admitted that he pledged and ceded one hundred percent (100%) of
his member's interest in Villaview to BHI as security for Villaview's obligations.
He denied that BHI validly implemented and/or enforced the pledge as he alleges
that Villaview did not breach its obligations to BHI. On the contrary, Uys alleges
that BHI ceased funding it as a result of its inability to provide funding.
[39] Uys deposed that:
'The reason why I signed the surety documents , cession and pledge was to
afford the Applicant with peace of mind that I will complete the development and
that I am personally committed. I submit that it is indeed the Applicant who
breached the agreement by not releasing funds from the transferring attorneys
thereby strangling the Second Respondent , the development and other creditors,
for its own benefit.
[40] Upon receipt of the application to abandon the business rescue related
proceedings, Uys filed an answering explanatory affidavit wherein he alleged that
13
BHl's acceptance of the business rescue plan rendered the application moot.
Uys argues that the adoption of the plan has the effect that BHI is precluded from
advancing any further claim of whatsoever nature against Villaview and against
him. The remaining relief which BHI seeks in the amended draft order amounts
to a call up for security from Uys which is precluded by the business rescue plan
which was voted for and accepted by BHI.
Discussion
[41] It is common cause that Villaview failed to pay the minimum monthly loan
instalments to BHI since September 2023 and persisted with its nonpayment
thereof notwithstand ing demand in April 2024. Uys alleged that he was
exempted from making these monthly instalment payments as he paid
R14 492 930.38 to BHI following the sale of a farm he owned through a different
entity, 15AE Properties (Pty) Ltd. However, at the time BHI was the mortgagee
in respect of the first bond over this farm.
[ 42] Clause 15 contained in the first loan agreement provides:
'Should the Borrower or its related parties dispose of the property over which the
Lender has Security in the form of a first mortgage bond, the proceeds of this
disposal shall be paid to the Lender and reduce the outstanding balance of the
loan.'3
[43] Therefore, the payment of R14 492 930.38 was in terms of the loan agreements
and did not indemnify Uys against the payment of the monthly minimum
instalments.
3The equivalent clause in the second loan agreement is clause M(vii).
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(44] Uys implies that a variation of the loan agreements occurred which would excuse
the payment of the minimum monthly installment. This argument holds no water
as the loan agreements provide that 'This document records the entire
agreement between the parties and no amendment or cancellation or substitution
of the whole or any portion thereof shall be of any force or effect unless such
amendment , cancellation or substitution is reduced to writing and signed by the
parties thereto. '
(45] In his answering affidavit, Uys also appears to contend that Villaview's
obligations to pay the minimum monthly instalments were reciprocal to BHI
discharging its obligations to provide Villaview with further funding. This
argument relies on clauses 7 and 8 of the addendum to the loans which provide
that:
'7. It is agreed that a maximum of RB 000 000 (Eight Million Rand) is being
held by the Lender for future draws by the Borrower prior to transfer.
8. It is agreed that the Lender shall re-advance funds to the Borrower, to
complete the developments , as and when sale proceeds are received
from the transferring attorney -provided a fair and reasonable amount of
securities remain in place and that the developments remain financially
feasible.
This creates a revolving facility limited to amount as disclosed in item of
this addendum .'
(46] As seen from clause 8, the further financing by BHI was subject to it receiving
sales proceeds from the transferring attorneys; that a fair and reasonable amount
15
of security remained in place and that the development remained financially
feasible.
[47] By April 2024, there were no proceeds of sales which BHI could have advanced
to Villaview. Furthermore , it cannot be said that the development remained
financially feasible.
[48] Therefore, Uys failed to show that the suspensive conditions under which further
financing would be made available were fulfilled. Further, the addendum 's
written provisions do not support the argument that the payment of the minimum
monthly instalments were reciprocal and dependent upon further financing being
made available to Villaview. On the contrary, it undermines the argument for
reciprocal obligations on BHI to provide further financing as it would amount to a
variation of agreements without complying with the agreed upon formalities for
such variation.
[ 49] As there is no express written term in the addendum providing for the reciprocal
obligations which would have permitted the suspension of the minimum monthly
instalments, Uys has to make out a case for the incorporation of a tacit term to
this effect. Therefore, Uys would have to show that the parties would necessarily
have agreed to such a term if it had been suggested at the time.4 He failed to do
so.
[50] BHI has also shown on an analysis of the figures that View a Bay Development is
not feasible.5 This also constituted a breach of the loans extended to Villaview by
BHI.
4 City of Cape Town (CMG Administration) v Bourbon-Letttey and Another 2006 (3} SA 488 (SCA) at para
[19)
5 Paragraph 14 of the replying affidavit, pg. 235
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[51] In terms of the pledge and cession agreement , BHI was entitled to realize Uys'
members interest in Villaview if Uys breached his obligations imposed under the
pledge and cession agreement or if BHI became entitled to claim payment from
Uys in respect of any obligation for which the pledge and cession was given as
security. 6
[52] Furthermore, in terms of the pledge and cession agreement , BHI did not require
a court order or the fulfillment of any formality to take over Uys' pledged
members' interest. The right to do so accrued with the occurrence of one of the
stipulated trigger events.
(53] Uys breached his obligations in terms of clause 4.3, 4.4 and 4.7 of the pledge
and cession when he placed Villaview into business rescue without BHl's written
approval.7
[54] Villaview also breached the loan agreements and failed to remedy same after
receiving written notice requesting it to do so. Consequently , BHI was entitled to
demand the full outstanding amount due to it. As Uys stood surety for Villaview's
indebtedness, BHII was entitled to look to him for payment.
[55] The occurrence of the trigger events entitled BHI to perfect Uys' one hundred
percent member's interest in Villaview and to treat it as its own, subject to BHI
crediting Uys with the fair value thereof.
6 Paragraph 21 of the founding affidavit read with paragraph 143 of the answering affidavit.
7 Clause 4.3 provides that: 'no special resolution of the shareholde r of the company will be proposed or
passed without the written consent of the creditor (SHI) which shall not be unreasonably withheld.'
Clause 4.4 provides that: 'the company /corporation will carry on business in the normal and regular way';
Clause 4. 7 provides that: 'it will immediately notify the creditor if there is a material deterioration in the
financial condition of the company /corporation of if the company becomes "financially distressed " as
defined in the Company Act, 71 of 2008 or is reasonably likely to become "financially distressed " within
any immediate ensuring 12 (twelve) month period.'
17
[56] There is no legal impediment to this relief.8 Furthermo re, there is no factual
impediment to the granting of the relief as BHI has shown that Uys breached the
terms of the pledge and cession agreement and that Villaview breached the
terms of the loan agreements , rend~ring Uys answerable to BHI for the amount
of R100 million, factually entitling BHI to perfect Uys member's interest in
Villaview.
[57] This right to perfect the members interest in Villaview is not affected by BHl's
adoption of the business rescue plan as it had accrued upon the occurrence of
the trigger events. Thus, at the time the business rescue plan was adopted, BHI
had already accrued Uys member's interest in Villaview. The adoption of the
business rescue plan did not undo this position nor could it result in the factual
position being revisited or reversed.
[58] In the circumstances, I am satisfied that BHI has made out a case for the pledge
related relief it seeks.
Condo nation
[59] Uys sought condonation for the late filing of his answering affidavit. Although
BHI did not oppose the condonation sought, it did point out the knock on effect it
had on the filing of it replying papers which consequent ly were also delivered out
of time and for which it in turn sought condonation.
Conclusion
[60] In the circumstances , I make an order in the following terms:
(i) the first respondent's late filing of the answering affidavit is condoned ;
8 Bock v Buburoro Investments (Pty) Ltd 204 (2) SA (SCA)
18
(ii) the applicant's late filling of the replying affidavit is condoned;
(iii) the applicant is entitled to forthwith to
(a) procure the registration of all or any of the first respondent's member's
interest in the second respondent into the applicant's name or that of
its nominee;
(b) realize the first respondent's member's interest in and/or claims
against the second respondent either by public auction or by private
treaty, as the applicant may in its sole and absolute discretion deem fit,
or to take over the member's interests and/or claims at fair value as
agreed or as determined by the auditors of the applicant (who shall act
as an expert and not as an arbitrator);
(c) apply the net proceeds of the sale, after all expenses of realization , to
or set off the purchase price payable by it for the member's interest
against the second respondent's indebtedness to the applicant, with
the shortfall to remain as a debt due by the second respondent to the
applicant; and
(d) act as the first respondent's attorney and agent in the first respondent's
name, place and stead, irrevocably and in rem suam, to sign and
execute all documents necessary to enable the applicant to exercise
any of its abovementioned rights.
(iv) the first and second respondents are directed to take any and all steps
that may be required in order to give effect to (iii)(a) above on demand,
including by providing the applicant with:
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(a) the original CK form in relation to the second respondent together with
any certificate of interest, and a duly signed and completed CK2 form
wherein the name of the transferee has been left blank; and
(b) any and all information required to value the first respondent's
members' interest in the second respondent.
(v) The fifth respondent is directed to take any and all steps that may be
required in order to give effect to paragraph (iii)(a) above on demand but
subject to the applicant's compliance with the fifth respondent's
requirements .
(vi) The costs of the application shall be borne by the first respondent ,
including the costs of two counsel where so employed on scale C.
16 May 2025