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2025
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[2025] ZANCHC 105
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O 2 Boerdery and Others v Du Toit N.O and Others (3317/2024) [2025] ZANCHC 105 (31 October 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No
.: 3317/2024
Date
heard: 21-02-2025
Date delivered:
31-10-2025
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:
Yes/No
In
the matter between:
O
2
BOERDERY
1
st
Applicant
JOHANNES
HENDRIK SNYMAN (SNR) N.
O
2
nd
Applicant
JOHANNES
HENDRIK SNYMAN (JNR)
N.O
3
rd
Applicant
JOHANNES
LODEWIKUS VAN DER LINDE N. O
4
th
Applicant
and
JACQUES DU TOIT N.
O
1
st
Respondent
LAND
AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
2
nd
Respondent
MASTER
OF THE NORTHERN CAPE HIGH
3
rd
Respondent
COURT,
KIMBERLEY
INTERESTED
PARTIES
4
th
Respondent
WILLEM
VENTER SNYMAN N.
O
1st Interested Party
WILLEM
VENTER SNYMAN N.
O
2
nd
Interested Party
ANDRE
HEYNS N.
O
3
rd
Interested Party
(IN
THEIR CAPACITY AS THE DULY APPOINTED
TRUSTEES
OF THE WILLIE SNYMAN TRUSTS (IT70/2008(K))
FREDERIK
PIETER MATTHEUS SNYMAN N. O
4
th
Interested Party
ENGELA
WILHELMINA LIEBENBERG N. O
5
th
Interested Party
MARIA
CATHARINA VIVIER N.
O
6
th
Interested Party
(IN
THEIR CAPACITY AS THE DULY
APPOINTED
TRUSTEES OF THE FREEK SNYMAN TRUST
(IT69/2008
(K))
ABRAHAM
ADRIAAN SNYMAN N. O
7
th
Interested Party
MARIA
CATHARINA VIVIER N.
O
8
th
Interested Party
NEDBANK
9
th
Interested Party
GRIEKWALAND
WES KORPORATIEF LTD
Intervening Party
CORAM:
WILLIAMS J
JUDGMENT
WILLIAMS
J:
1.
The applicants have brought an application on a
semi-urgent basis for
inter alia
the following relief.
(a)
That the business rescue proceedings of Doornhoek
Plase (Pty) Ltd be stayed pending finalisation of the action issued
by the applicants
under case no 2884/2024;
(b)
That the first respondent be interdicted from
transferring the immovable properties of Doornhoek Plase (Pty) Ltd,
pending finalisation
of the above-mentioned action; and
(c) That the second
respondent and any other party opposing the application pay the costs
of the application jointly and severally,
the one paying the other to
be absolved.
Background
2.
On 2 February 2024, Doornhoek Plase (Pty) Ltd
(“
Doornhoek
”)
was placed in business rescue by order of court. This came
after the second and third applicants, who are herein
cited as
trustees of the Johan Snyman Trust (the minority shareholder),
brought an application for the liquidation of Doornhoek
in their
personal capacities. The remaining shareholders of Doornhoek
launched a counter-application for Doornhoek to be
placed in business
rescue. By agreement between these parties Doornhoek was then
placed in business rescue.
3.
The Johan Snyman Trust is a 28% shareholder of
Doornhoek and the second to fourth applicants are trustees of the
Trust, cited in
their capacities as such.
4.
O2 Boerdery (Pty) Ltd, the first applicant is a
tenant of the Doornhoek properties.
5.
On 17 July 2024 the first respondent, as duly
appointed Business Rescue Practioner (BRP) of Doornhoek submitted a
business rescue
plan which was accepted and duly adopted by the
majority of proven creditors, including the second respondent, Land
Bank.
6.
The business rescue plan envisaged
inter
alia
the sale of the immovable properties of
Doornhoek to settle its debts.
7.
The applicants contend that it had come to their
attention during October, 2024 that several debtors of Land Bank have
disputed
the cession of claims to Land Bank as a result of which the
applicants obtained legal advice regarding the cession by Griekwaland
Wes Korporatief Limited (GWK) of its rights against Doornhoek to Land
Bank.
8.
The legal advice obtained informed that on a
proper interpretation of the sale agreement and service level
agreement between Land
Bank and GWK, these agreements do not support
Land Bank’s claim that a cession of rights from GWK did in fact
occur in that
a cession of security without the underlying debt has
the effect that the security is not enforceable and stands to be set
aside.
The result being that Land Bank cannot enforce the
securities against Doornhoek and does not have the necessary
locus
standi
to claim the debt from Doornhoek.
9.
Without the Land Bank debt, Doornhoek would no
longer be in financial distress and would suffer irreparable harm
should the business
rescue proceedings not be stayed, pending the
finalisation of an action to determine whether indeed Land Bank is a
creditor of
Doornhoek.
10.
It is contended that Nedbank, the only other
major creditor of Doornhoek, would suffer no prejudice should the
business rescue proceedings
be stayed, since the first applicant (O2
Boerdery) is in a position to pay an amount equal to the instalment
that is due and payable
to Nedbank, pending the finalisation of the
actions.
11.
The applicants allege that they have no other
satisfactory remedy other than that sought herein and that the
balance of convenience
favour them as shareholders of Doornhoek who
have a
prima facie
right that its assets not be sold in circumstances where they have
convincing proof that Land Bank is not a creditor of Doornhoek.
12.
Land Bank, Nedbank and the 1
st
to 8
th
interested
parties all oppose the application. GWK has brought an
application to intervene and oppose the application.
13.
The opposition to the application overlaps as far
as the various respondents are concerned and includes points
in
limine
such as urgency, and
locus
standi
in addition to opposition on the
merits. I deal firstly however with GWK’s application to
intervene.
GWK’s
application to intervene
14.
GWK has sought leave to intervene on the basis
that it has a direct and substantial interest in the application.
The averment
is underpinned by the fact that O2 Boerdery and
Doornhoek were co-principal debtors of GWK, which debts both GWK and
Land Bank
are
ad idem
had
been ceded to Land Bank at a stage when the indebtedness towards GWK
remained unpaid. The intended action by the applicants,
in
which GWK and Land Bank are cited as defendants, seek not only a
declaratory order that Land Bank has no
locus
standi
to claim the amount “
allegedly”
indebted to Land Bank but also an order that
the first covering mortgage bond in favour of GWK (which has been
ceded to Land Bank)
be cancelled and set aside, without any basis
being laid for such relief. Should this main application
succeed GWK would
be drawn into a trial in which the applicants, as
plaintiffs in the action, have no prospects of success neither the
means to satisfy
any adverse cost order against them.
15.
The application to intervene is opposed by the
applicants on the basis that GWK has no
locus
standi
since on its own version, it is not
the holder of any right, title and interest in the debts of
Doornhoek. GWK’s application
for condonation for the late
filing of this application to intervene is opposed on the above basis
as well as on the basis of an
inadequate explanation for the delay.
16.
I deal first with the application for
condonation. In this regard, the Rules make no provision for
time periods within which
to intervene. Rule 12 specifically
states that a party may apply at any stage of the proceedings for
leave to intervene,
provided notice has been given.
17.
In this instance the application to intervene was
served on the cited parties on 28 January 2025, three days before the
main application
was set down for hearing. GWK in its founding
affidavit in the application to intervene explained that it had not
been served
with the main application, not being a party to the
proceedings, but had been informed thereof by Land Bank’s
attorney on
8 January 2025. GWK’s senior legal advisor
was on annual leave at the time and was only able to attend to the
matter
on her return to office on 16 January 2025 whereafter she gave
instructions to GWK’s attorney to intervene in the main
application.
In the meantime GWK had to file its plea in the
action as well.
18.
I am satisfied that sufficient explanation
for the delay has been given. As far as the merits of the
application to intervene
are concerned, it was held in
Peermont
Global (KZN) (PTY) Ltd v Afrisun KZN (Pty) Ltd t/a Sibaya Casino and
Entertainment Kingdom
[2020] 4 All SA 226
(KZN) at paragraph 18
thereof that:
[18] The rule
is equally applicable to applications. It has not overridden or
replaced our common law, which remains applicable
to interventions.
Our courts have held that a party is entitled to intervene as an
applicant in an application where:
[18.1]
it has a direct and substantial interest in the right that is the
subject matter of the application, which could be
prejudiced by the
judgment of the court. The interest must be such that the
intervenor’s joinder is either necessary
or convenient. But
the possibility that a legal interest exists is sufficient, and it is
not necessary for the court positively
to determine that it exists;
[18.2]
the allegations made by the intervening applicant constitute
a prima face case or defence. It
is, however,
not necessary for the intervenor to satisfy the court that it will
succeed in its case or defence. It is sufficient
for the party
seeking to intervene to rely on allegations which if they can be
proved in the main application, would entitle it
to succeed.
In
assessing the intervenor’s standing, then, the court must
assume that the allegations it advances are true and correct;
and
[18.3]
the application is made seriously and is not frivolous”
19.
Whilst it may be so that on its own version GWK
is not a creditor of Doornhoek, in that it ceded its rights and title
in the debt
to Land Bank, the main purpose of the main application
and the subsequent action is to invalidate Land Bank as cessionary,
The debt however remains unpaid and should the applicants be
successful in the application and action, GWK who would again be
burdened with the collection of the debt would be prejudiced in that
the security already ceded to Land Bank remains so ceded until
set
aside in terms of the applicants particulars of claim and GWK would
thus not be able to execute against its security until
finalisation
of the action.
20.
Mr Janse Van Rensburg for the applicants
contended that such an outcome would be countered by the applicants
on the basis of estoppel,
but such an eventuality is in my view best
left for future detemination. At present I am satisfied that
GWK has shown a direct
and substantial interest in the subject matter
of the application or at the very least a legal interest and should
be allowed to
intervene. The application to intervene is thus
allowed.
Condonation
21.
The respondent and interested parties who have
opposed the application have all filed their opposing papers later
than 6 January
2025 as required by the applicants. Given the
timing of the launch of the application over the December/January
holiday period
and seeing that there was no prejudice occasioned by
such late filing, it is condoned in respect of all opposing parties.
Opposition
to the application
Urgency
22.
The respondents and other opposing parties have
taken the point that this application was not urgent or if there was
any urgency
it was of the applicants’ own making. The
amended business rescue plan had been adopted by the majority of
creditors
on 17 July 2024, since which date the applicants were aware
of Land Bank’s claim and that the immovable assets of Doornhoek
would be sold as part of the plan. The applicants allege that
they became aware during October 2024 that the cession of the
debt by
GWK to Land Bank can be challenged. The applicants issued the
summons referred to herein for a declaratory order
that Land Bank
lacks the necessary
locus standi
to claim the debt from the applicants and/or Doornhoek and for the
cancellation of the mortgage bond during November 2024, but
delayed
to launch this application until 12 December 2024, at the end of the
court term and the beginning of the holiday season.
23.
The applicants contend that the sale of the
property was tabled to be voted upon at a special meeting held on 4
December 2024. Their
attorney of record was instructed to vote
against the acceptance of the offer on their behalf, but was outvoted
by the majority
of creditors who voted to accept the offer and
resolved that the business rescue process should not be suspended
pending the finalisation
of the action instituted by the applicants.
24.
This application was launched 8 days later, on 13
December 2024. The applicants contend that they would not be
afforded substantial
redress at a hearing in due course, when the
sale of the property would be unnecessary if the applicants are
successful in expunging
Land Bank’s claim and Doornhoek would
be returned to a successful income generating enterprise.
25.
In terms of the Notice of Motion, opposing papers
had to be filed by 6 January 2025 and though such time limit,
especially over
the festive season was not feasible for most, if not
all the respondents and interested parties, all the opposing
affidavits were
delivered in time for the applicants to file a
replying affidavit. The matter was postponed on 31 January 2025
however for
the hearing of the application to intervene and the main
application.
26.
The application was not brought with the utmost
urgency, but on a semi-urgent basis. I must also mention, that
the applicants’
attorney had sent a letter to the business
rescue practitioner, dated 18 November 2024, wherein the Land Bank
claim was queried
and a request was made that the BRP investigate the
query and undertake not to proceed with the sale of the property
until the
finalisation of such an investigation. Applicants, in
their founding affidavit averred that no response had been
forthcoming
from the BRP after which the application was launched.
27.
In the circumstances I am not of the view that
the urgency was of the applicants’ own making. Save for
the fact of the
intervening holidays, which caused some
inconvenience, the deviation from the normal time periods for the
filing of papers is not
disproportionate to the urgency of the
matter. I would therefore not dismiss the application on this
ground only.
Locus
standi of the applicants and the related provisions of the Companies
Act, 71 of 2008 (the Act)
28.
The
locus standi
of the first applicant, O2 Boerdery, was not addressed in the
founding affidavit. Only after this point was taken in the
opposing papers did the applicants in reply aver that O2 Boerdery is
the tenant on the immovably properties and that it has made
certain
improvements to the properties and is thus also a creditor of
Doornhoek.
29.
The argument is that it is impermissible for the
applicants to make the necessary averment regarding
locus
standi
in the replying affidavit and even if
permitted, being a tenant of a company in business rescue does not
clothe a party with
locus standi
to litigate on behalf of the company. The claim for
improvements which O2 Boerdery ostensibly has, has only been
submitted
to the BRP on 12 December 2025, coincidentally the same day
the application was launched. This claim has not as yet been
approved by the BRP.
30.
It is trite that appropriate allegations to
establish the
locus standi
of an applicant should be made in the founding affidavit and not in
reply. The court however has a discretion to allow new
matter
in a replying affidavit in exceptional cases particular regard should
be had to whether the new matter was known to the
applicant when the
application was launched and whether allowing such new matter would
be prejudicial to the respondents.
31.
No reason whatsoever has been given for the
belated attempt by the first applicant to establish
locus
standi
in te replying affidavit. The
claim which is attached to the replying papers appear to be based on
improvements done before
2018 and appear to have been connected to
some other transaction around that period. The BRP is best
suited to decide thereon,
but the point made is that it is an old
claim.
32.
Allowing the first applicant to prove its
locus
standi
in the replying affidavit would be
highly prejudicial to all the respondents, who have not had the
opportunity to file further
affidavits in respect thereof.
33.
In any event as a tenant, O2 Boerdery can
possibly be subject to s 136(2) of the Act which allows a business
rescue practioner to
entirely, partially or conditionally suspend,
for the duration of the business rescue proceedings any obligations
of the company
that arise under an agreement the company was party to
at the commencement of business rescue proceedings and would
otherwise become
due during the proceedings. The BRP may also
apply urgently to court to have any obligation in terms of such an
agreement
entirely, partially or conditionally cancelled. The
party to an agreement that has been suspended or cancelled may in
terms
of s 136 (3) assert against the company
only
a claim for damages.
34.
It would appear from the above that a tenant
would have no authority to interfere in the business rescue
proceedings and that O2
Boerdery’s only redress would be to
claim damages from Doornhoek if such can be shown to have been caused
as a result of
the suspension or cancellation of the contract with
Doornhoek.
35.
As “
creditor”,
the first applicant is bounded by the
decision of the majority of creditors to approve and adopt the
business rescue plan.
In terms of s 15(2)(4)(c) such business
rescue plan is binding on creditors whether or not they had proven
their claims against
the company.
36.
There are therefore no compelling reasons or
exceptional circumstances for allowing the first applicant to remedy
its lack of allegations
as to its
locus standi
in the replying affidavit. The first applicant has therefore
failed to show its
locus standi
to
bring this application.
37.
As far as shareholders are concerned, in business
rescue proceedings, the scope of their participation is found in s
146 of the
Act, which entitles a shareholder to:
“
146.
. . . (a) notice of each court proceeding, decision, meeting or other
relevant event concerning the business rescue proceedings;
(b)
participate in any court proceedings arising during the business
rescue proceedings; (c) formally participate in a company’s
business rescue proceedings to the extent provided for in this
Chapter; (d) vote to approve or reject a proposed business rescue
plan in the manner contemplated in section 152, if the plan would
alter the rights associated with the class of securities held
by that
person; and (e) if the business rescue plan is rejected, to—
(i) propose the development of an alternative plan,
in the manner
contemplated in section 153; or (ii) present an offer to acquire the
interests of any or all of the creditors or
other holders of the
company’s securities in the manner contemplated in section
153.”
38.
The argument by the respondents is that the
second to fourth applicants are not seeking to enforce the
above-mentioned rights.
Furthermore s 151(4) of the Act makes
it clear that a business rescue plan which has been adopted is
binding on the company, its
creditors and shareholders, whether or
not such person was present at the meeting. In addition the
general moratorium on
legal proceedings against a company or in
relation to its property (s 133) during business rescue proceedings
disentitle the shareholders
from bringing an application such as in
casu.
39.
Mr Janse Van Rensburg has referred to the matters
of
Moodley v Digital Media (Pty) Ltd and
Others 2014(6) SA 279 (GJ) and Limbouris and Others vs Du Toit NO and
Others
[2024] 4 All SA 562
(WCC), in support
of the minority shareholder’s contention that it does have the
necessary
locus standi
to bring the application and that no leave is required in terms of s
133 before bringing the application.
40.
In the
Moodley
matter, a minority shareholder sought leave from the court to proceed
with an application against the company in business rescue
and its
business rescue practioner in terms whereof declaratory relief was
sought that certain transactions were not in accordance
with the
adopted business rescue plan, and for the company and the business
rescue practitioner to be interdicted from implementing
the
transactions consisting of a share buy-back, issue of new shares,
adoption of a new memorandum and a draft subscription agreement.
The court held that such proceedings are legal proceedings against
the business rescue practitioner and the company in business
rescue
in connection with the business rescue plan and were not proceedings
against the company or property belonging to the company
or lawfully
in its possession in terms of s 133. The minority shareholder
therefore did not require leave from the court
to institute the legal
proceedings.
41.
In
Limbouris,
creditors of the company in business rescue applied for leave to the
court to interdict the business rescue practioner from filing
a
notice of substantial implementation of the adopted business rescue
plan pending final determination of an action to be instituted
for
the setting aside of the business rescue plan. The court
inter
alia,
following the reasoning in the
Moodley
matter, found that the setting aside of the business rescue plan was
a proceeding pertaining to the development, adoption and
implementation of a business rescue plan and did not require leave of
the court in terms of s 133.
42.
The present application is not as clear cut as
the above-mentioned. It does not only pertain to issues in
connection with
the business rescue plan (its suspension) but also to
the property of the company by seeking an interdict against the sale
of the
property. S 133(1) of the Act is clear in this regard
and provides
inter alia
that “
During business rescue
proceedings, no legal proceedings . . . . against the company
or
in relation to any property
belonging to the company
, or lawfully
in its possession, may be commenced or proceeded with any form,
except.
(a)
With the written consent of the
practioner;
(b)
With the leave of the court and in
accordance with any terms the court considers sustainable. . . . “
43.
I am of the view that this application is one
which falls within the moratorium against legal proceedings created
in s 133 and that
the second to fourth applicants require leave from
the court to bring these proceedings and are therefore not properly
before court.
44.
Even if I am wrong in this regard, the minority
shareholder for all intents and purposes is bringing this application
in the interest
of and on behalf of Doornhoek. This much is
obvious from the allegations in the founding affidavit
inter
alia
that:
“
In
the event that the Land Bank’s claim is expunged, Doornhoek
Plase is no longer in financial distress, and should the business
rescue proceedings be uplifted.”
“
Doornhoek
Plase will suffer irreparable harm if the business rescue proceedings
are allowed to continue, under circumstances where
the only valuable
asset of Doornhoek Plase is sold, to pay a non existing creditor,
Land Bank.” a
nd
‘
The
Sale of the property would be unnecessary if the applicants are
successful in expunging the Land Bank claim and Doornhoek Plase
can
be returned to a successful income generating business.”
45.
S 165 of the Act makes provision for a statutory
derivative action to commence or continue legal proceedings on behalf
of a company
and abolishes any right at common law of a person other
than the company, to bring legal proceedings on behalf of the company
and
substitutes the right at common law to bring a derivative action.
46.
The minority shareholder has however not resorted
to s165 nor complied with those provisions in bringing this
application.
It also does not rely on s 163 of the Act which
entitles shareholders to apply to court for relief from oppressive or
prejudicial
conduct or from abuse of the separate juristic
personality of the company.
47.
For the sake of completeness, should I be wrong
and the minority shareholder does have
locus
standi
to bring this application, within the
purview of Chapter 6 of the Act relating to business rescue
proceedings, I now turn to the
case for the applicants.
The
case for the applicants
48.
The applicants contend that in the event Land
Bank’s claim is expunged, Doornhoek would no longer be in
financial distress
and the business rescue proceedings can be
uplifted.
49.
This proposition does not take into account that
Land Bank’s claim is for an amount of R4. 8 million whereas the
total creditors’
claims amount to R12. 8 million. Even in
the event that Land Bank’s claim is expunged, Doornhoek will
still be left
with debts of some R8 million, which the applicants do
not address save for the Nedbank claim. In this regard the
applicants
state that the first applicant (O 2 Boerdery) would be in
a position to pay an amount equal to the instalment that is due and
payable
to Nedbank pending the finalisation of the action.
50.
Nedbank obtained default judgment against
Doornhoek and an affiliate, Hans Kanon Boerdery for payment in the
amount of R850,532
plus interest and costs on 8 January 2021.
The judgment debt was not satisfied and Nedbank then brought an
application in
terms of Rule 46A against Doornhoek, declaring the
immovable property of Doornhoek especially executable. This
application
was opposed by Doornhoek, which also filed a
counter-application in which was requested, as alternative relief,
that it be placed
in business rescue. Nedbank agreed to the
business rescue proposal and the Rule 46A application was then
postponed
sine die
on
29 September 2023. Nedbank’s total claim now stands at
R1. 19 million.
51.
Nedbank has a preferential claim against
Doornhoek and state in its affidavit that it has been actively
involved in the business
rescue proceedings. It has voted in
favour of the business rescue plan to sell the immovable properties
of Doornhoek and
is not content to be paid in instalments as proposed
by the applicants when the full outstanding debt is due and payable.
52.
At the meeting where the majority of creditors
voted in favour of the sale of the immovable properties for an amount
of R16 million,
the proposal by the minority shareholder that the
sale be stopped pending the finalisation of the action, was raised
and voted
against.
Nedbank’s
attorney, Ms Snyders, proposed that the amount of the disputed claim
of Land Bank be held in trust after the sale
of the properties in
order for the approved business rescue plan to be implemented.
The majority of creditors adopted this
proposal.
53.
Land Bank and GWK maintain that the cession of
the mortgage bond by GWK pursuant to the cession of rights from GWK
to Land Bank
was validly and legally done. GWK has attached to
its affidavit its plea to the applicant’s particulars of claim
in
the action, which incorporates a cession agreement entered into
between itself and Land Bank before the sale agreement and service
level agreement which the applicants have taken umbrage to and which
GWK states supplements the two later agreements. Therefore
according to GWK, even if the applicants are correct, which it
denies, that a cession did not take place in the sale agreement
and
service level agreement, the cession agreement stands and all the
conditions therein have been met.
54.
I do not intend to opine on the merits of the
applicants’ assertion of the invalidity of the cession from GWK
to Land Bank.
I do not consider it necessary in determining
whether the applicants have made out a case for the relief sought and
it should best
be left to be determined in the action.
55.
What is of importance to consider in this
application is that the “
expunging”
of Land Bank’s claim would not automatically absolve Doornhoek
from its debt. The judgment debt remains unpaid and
whether it
is claimed by Land Bank or GWK makes no difference to Doornhoek’s
financial position.
Conclusion
56.
In my view the applicants have failed to make out
a
prima facie
case for
the relief sought.
57.
The applicants have also failed to show that it
would suffer irreparable harm should the interim relief not be
granted.
58.
Mr Janse Van Rensburg argued that the balance of
convenience favours the applicants in that they have an interest in
the business
rescue proceedings to ensure that claims which are not
valid are not entertained. This argument is however catered for
in
the proposal accepted by the majority of creditors that the
portion of the proceedings of the sale of the property which would
have gone to Land Bank be held in trust pending the outcome of the
action.
The
balance of convenience does not favour the applicants at all.
The majority creditors have voted in favour of the sale
of the
properties and the majority sharholders (represented by 1
st
to 8
th
interested parties) are in favour of the sale.
The applicants have not shown that there is any other way of paying
the debts
of Doornhoek other than selling the properties. The
action instituted by the applicants can take years to finalise and in
the meantime interest accrues on the outstanding debts. In any
event business rescue proceedings are not meant to last for
an
indeterminate time period. The relief sought may very well have
the effect that the business rescue order be susceptible
to being set
aside by order of court, which could result in liquidation
proceedings against Doornhoek or Nedbank proceeding with
its Rule 46A
application.
59.
As far as the prospects of success in the action
is concerned, the opposing parties have correctly argued that even if
the cession
between GWK and Land Bank is found to be invalid, the
applicants have not shown any basis in law why the mortgage bond
which is
security for the debt, which still remains unpaid, would be
cancelled and set aside.
60.
The applicants have failed to make out a case for
the relief sought and all that remains is the issue of the costs of
the application.
Costs
61.
There is no reason why costs should not follow
the result. The issue is only, on which scale? and who should
bear the costs
of the postponement on 31 January 2025.
62.
The scale of costs contended for by the opposing
counsel was for costs on the attorney client, scale alternatively
costs on Scale
C.
63.
I am of the view that attorney client costs are
not appropriate in this instance. Whereas the applicants may
have been ill
advised to bring this application, I cannot find that
the application was in any way vexatious or malicious. Scale C
is reserved
for complicated matters. In this matter, the papers
were bulky and it had to be attended to in a short space of time.
The
issues were not simple or common place. I am of the
opinion that costs on scale C would be appropriate.
64.
As far as the postponement on 31 January 2025 is
concerned, it is so that GWK was obliged to intervene after the
applicants had
failed to give it notice of the application. I
have found that GWK has a direct and substantial interest in the
subject matter
of the application. The fact that their
intervention was the cause of the postponement on 31 January cannot
be laid solely
at their door.
65.
The wasted costs occasioned by the postponement
should however in my view be borne on the party and party scale.
The following order is
made:
a)
The application is dismissed with costs on
Scale C.
b)
The wasted costs occasioned by the
postponed on 31 January 2025 are to be borne by the applicants on the
party and party scale.
CC
WILLIAMS
JUDGE
For
Applicants:
Adv
Janse Van Rensburg
PGMO
Attorneys
For
2
nd
Respondent:
Adv A
Van der Merwe
Van
de Wall Inc
For
1
st
to 8
th
Interested parties:
Adv
Heystek SC
Van
de Wall Inc
For
the 9
th
Interested party (Nedbank):
Adv
Rautenbach
Engelsman
Magabane Inc
For
Intervening Party:
Adv
Gilliland
Van
de Wall Inc