1
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
NORTH WEST DIVISION MAHIKENG
Not reportable
CASE NO: 3506/24
In the matter between:
PREV ANCE BONDS (PTY) LTD
(Registration Number: 1993/005402/07) Applicant
and
XYD PROPERTY GROUP (PTY) LTD
(IN LIQUIDATION)
(Registration Number: 2012/030594/07) First Respondent
JOHANNES CHRISTIAAN SEYFFERT
(Identity Number: 5[...]) Second Respondent
RINA SEYFFERT
(Identity Number: 5[...]) Third Respondent
2
And in the Counterapplication between:
JOHANNES CHRISTIAAN SEYFFERT First Applicant
RINA SEYFFERT Second Applicant
JOHANNES CHRISTIAAN SEYFFERT N.O. Third Applicant
RINA SEYFFERT N.O. Fourth Applicant
(In their capacities as trustees of the JC Seyffert Trust)
and
PREV ANCE BONDS (PTY) LTD First Respondent
THE JOINT PROVISIONAL LIQUIDATORS OF
XYD PROPERTY GROUP Second and
Third Respondents
PREV ANCE CAPITAL (PTY) LTD Fourth Respondent
Coram: Reddy J
Heard: 16 October 2025
3
Delivered: Judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to SAFLII. The date and
time for handing down of the judgment are deemed to be 1 6h00 on 16 February
2026.
Summary: Insolvency and Real Security – Application for interdict restraining
collection of rental income and order to account to liquidators; Ranking of
secured creditors – priority of first mortgage bond over second mortgage bond;
Concursus creditorum – unlawfulness of individual creditor appropriating estate
assets to the exclusion of liquidators; Rectification of deeds – Prescription of
claim to challenge bond registration – application of caveat subscriptor
regarding acknowledgement of prior security.
___________________________________________________________________________
ORDER
___________________________________________________________________________
1. The Main Application is granted.
1.1. The Second and Third Respondents are interdicted and restrained from
collecting any rental income derived from Units 5 to 13 of the Sectional
Title Scheme known as Theresia Park.
1.2. The Second and Third Respondents are ordered to account to the Third
Respondent (the Liquidators) for all rental income collected from the said
units from 1 June 2021 to date.
1.3. The Second and Third Respondents are ordered to pay over to the Third
Respondent (the Liquidators) all amounts identified in the accounting
referred to in paragraph 1.2 above, together with interest a tempore morae.
2. The Counterapplication is dismissed.
4
3. The Second and Third Respondents (in the main application) and the First
to Fourth Applicants (in the counterapplication) are ordered to pay the costs
of the Main Application and the Counterapplication, jointly and severally,
the one paying the other to be absolved. Such costs are to be taxed on the
scale as between attorney and client.
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
REDDY J
Introduction
[1] What falls for consideration before this Court is a dispute between
secured creditors regarding the proceeds and rental income of a property
development known as Theresia Park in Potchefstroom.
[2] The applicant, Prevance Bonds (Pty) Ltd (Prevance), seeks to enforce its
rights as the cessionary of a first covering mortgage bond. Prevance seeks
interdictory relief restraining the second respondent (Johannes Christia an
Seyffert) and third respondent Mrs Rina Seyffert ( collectively the Seyfferts),
from collecting rental income from specific units in the development . Further,
Prevance seeks an order directing them to account for rentals collected and pay
such amounts to the liquidators of the first respondent, XYD Property Group
(Pty) Ltd (in Liquidation, “XYD”).
[3] The Seyfferts, together with the JC Seyffert Trust ( “the Trust”), oppose
the relief and have launched a counterapplication. In essence, they seek a
declaratory order that they be deemed preferent creditors over Units 5 to 13 of
5
the development and that the first mortgage bond registered in favour of
Prevance Capital (Pty) Ltd ( “Prevance Capital ”) was erroneously registered
over those units.
[4] XYD has been placed in liquidation. Consequently, the concursus
creditorum has commenced.
Background
[5] During the period 2015 to 2017, Prevance Capital provided bridging
finance to XYD for property development. As security for these loans, a first
continuing mortgage bond was registered in August 2015 over Erf 3[...],
Potchefstroom. This security was subsequently ceded to Prevance.
[6] The Seyfferts and the Trust were the owners of the land (portions of
Erven 1[...] and 1[...]4) upon which part of the development was to take place.
On 18 July 2015, they entered “Exchange Agreements” with XYD, in terms of
which they exchanged their land for Units 5 to 13 in the proposed sectional title
scheme.
[7] Crucially, in September 2015, a second covering mortgage bond was
registered over the property in favour of the Seyfferts. The development
proceeded, but XYD eventually went into liquidation. It is common cause that
the Seyfferts have been collecting rental income from the disputed units.
Prevance asserts that, as the holder of the first mortgage bond, it has a preferent
claim to the proceeds of the property and that the Seyfferts’ conduct prejudices
its security. The Seyfferts claim that, based on the Exchange Agreements and
alleged correspondence with Prevance Capital in August 2015, it was agreed
that Units 5 to 13 would be free of the first bond’s encumbrance.
6
The main application
[8] Prevance’s case is founded on a real right conferred by the registered first
mortgage bond. It is a fundamental principle of our law that a first mortgage
bondholder ranks preferent to a second mortgage bondholder.1
[9] In Klerck N.O. v van Zyl and Maritz,2 we were reminded that:
“A convenient starting point for the consideration of this issue is an analysis of the nature of
the real right which is constituted by a mortgage bond. A mortgage bond may be defined as
an instrument hypothecating landed property to secure a debt, existing or future. Lief NO v
Dettmann 1964 (2) SA 252 (A) at 259B; Thienhaus NO v Metje & Ziegler Ltd and Another
1965 (3) SA 25 (A) at 31F. At 259E of the former case the following appears:
'The only real rights in favour of the mortgagee created by the registration of a bond are
rights in respect of the mortgaged property, eg the right to restrain its alienation and a right to
claim a preference in respect of its proceeds on insolvency of the mortgagor. The real rights,
however, can only exist in respect of a debt, existing or future, and it follows that they cannot
be divorced from the debt secured by them.'
At 264 and 265 it was said that a mortgage bond is an acknowledgment of debt and at the
same time an instrument hypothecating landed property and that the object of a mortgage
bond is not merely hypothecation, but the settlement of the terms of the obligation it secures.
See, too, Thienhaus' case supra at 38.
It follows therefore that the real right created by a mortgage bond is accessory in nature and
is dependent for its existence on the existence of the obligation which it secures. If there is no
valid principal obligation for the mortgage bond to secure, there can be no valid mortgage
1 Lief NO v Dettmann 1964 (2) SA 252 (A) at 264-265; Thienhaus NO v Metje & Ziegler Ltd
1965 (3) SA 25 (A).
2 1989 (4) SA 263 at 275
7
bond and no real right of security in the hands of the mortgagee. See, too, Kilburn v Estate
Kilburn 1931 AD 501 where the following was said at 505 - 6:
'... (Y)ou cannot have a settlement of a security apart from the thing which is secured, be it a
money debt or the performance of an act. The settlement of a security divorced from an
obligation which it secures seems to me meaningless.... It is therefore clear that by our law
there must be a legal or natural obligation to which the hypothecation is accessory. If there is
no obligation whatever there can be no hypothecation giving rise to a substantive claim.
Now the Court below has found as a fact that there was no serious promise of £500 and no
intention to pay the wife that sum, but that the whole intention of the spouses was that the
wife should claim £500 if and when the husband became insolvent. There was therefore no
obligation secured by this bond, and therefore in a concursus creditorum the appellant cannot
claim on the bond.'
Reference may further be had to Thienhaus' case supra at 32 where, after stating, with
reference to Kilburn's case supra, that it is clear that a mortgage bond as a deed of
hypothecation must relate to some obligation, Williamson JA added: 'If on a concursus
creditorum a mortgagee, or a pledgee fails to establish an enforceable claim which it was
intended should be secured by the hypothecation, the bond, or the pledge, as the case may be,
falls away.'
At 43 and 44, in the minority judgment of Wessels JA, the following passages appear:
'When the mortgagor causes a mortgage bond to be registered in favour of the mortgagee he
does so to give effect to an antecedent agreement between them - which may be either in
writing or verbal - in terms of which the former bound himself to grant to the latter, as
security for a debt, a real right in the immovable property concerned.... It is of the essence of
the real right which is constituted by the registration of a mortgage bond that it should be
the real right which is constituted by the registration of a mortgage bond that it should be
related to a debt, and the substantial reason why the antecedent agreement must of necessity
refer to the debt which it is intended to secure is so that the nature and extent (ie the content)
of the real right, which it is intended to constitute by the registration of a mortgage bond, may
be exactly determined. It follows from this that the obligation resting upon the debtor is to
effect the constitution of a real right in the immovable property concerned in favour of the
creditor in accordance with the definition thereof in the agreement in question.' Altho ugh
these last two passages appear in the minority judgment and in a context different from that
which obtains in casu, reference to the principles set out therein is apposite in this judgment.
Reference may finally be had to Wille Mortgage and Pledge 3rd ed at 4 and Lubbe on
8
'Mortgage' in Joubert (ed) Law of South Africa vol 17 para 398, and the authorities there
cited.”
[10] Prevance acknowledges that since XYD is in liquidation, it cannot claim
the rental income directly for itself. Instead, it seeks an order that the collected
rentals be paid to the liquidators to be dealt with in accordance with the laws of
insolvency. This concession is legally sound. Once liquidation supervenes, the
hand of the law is laid upon the estate, and no creditor may act individually to
recover its claim to the detriment of the concursus creditorum.3This is a
cornerstone of our
insolvency law: upon liquidation or sequestration, all creditors' claims are
to be considered collectively, preventing an individual creditor from obtaining
preferential treatment. This can be attributed to three key factors: first, for
equity and fairness; second, for orderly distribution; and third for the
preservation of assets.
[11] In Walker 4 the immediate legal consequence of this order was expressed
as follows:
"The effect of a winding -up order is to establish a concursus creditorum, and nothing can
thereafter be allowed to be done by any of the creditors to alter the rights of the other
creditors."
[12] Innes JA then continued5:
"The sequestration order crystallises the insolvent's position; the hand of the law is laid upon
the estate, and at once the rights of the general body of creditors have to be taken into
consideration. No transaction can thereafter be entered into with regard to estate matters by a
3 Walker v Syfret NO 1911 AD 141
4 At 166
5 At 166
9
single creditor to the prejudice of the general body. The claim of each creditor must be dealt
with as it existed at the issue of the order."
[13] The Seyfferts’ collection of rental income, to the exclusion of the
liquidators and the first bondholder, effectively appropriates an asset of the
insolvent estate. Unless they can establish a superior title, their conduct is
unlawful vis-à-vis the concursus creditorum.
The counterapplication
[14] The Seyfferts’ counterapplication seeks to redress the security history of
the property. They seek that this Court declare the first bond “erroneously
registered” over Units 5 to 13 and to declare them preferent creditors. Their
reliance is placed heavily on an exchange of correspondence in August 2015,
which they argue constitutes a waiver by Prevance Capital of its security over
Units 5 to 13. However, this contention is diffi cult to sustain and faces three
insurmountable challenges.
[15] First, the registration of the second bond in favour of the S eyfferts is a
clear acknowledgement of the status quo . It is illogical and bears mentioning
that antecedent to the registration of a second bond, a first bond must have been
registered. If the intention was for Seyf fert to own these units free of the
Prevance bond, the legal mechanisms employed (Exchange Agreements coupled
with a second bond) were inconsistent with such an intention.
[16] Prevance initially raised the defence of prescription. The legal position
regarding the rectification of a deed or contract examines the inquiry within the
prism of the law of general application as it relates to rectification.
10
[17] Before turning to the merits of the rectification argument, several general
principles require emphasis. Rectification of a written agreement is a remedy
available where, through a common mistake, the written contract does not
reflect the true intention of the contracting parties. It makes sense that a mistake
is a sine qua non for rectification . In Brits v Van Heerden 6 the following was
opined in this regard:
“… the mistake does not have to relate to the writing itself, but might relate to the
consequences thereof. The mistake may be that of only one party; the mistake may be
induced by misrepresentation or fraud. But there must be a mistake. In my view, the crux of
the matter is that the mistake, be it a misunderstanding of fact or law or be it an incorrect
drafting of the document, must have the effect of the written memorial not correctly
reflecting the parties’ true agreement.”
[18] In Weinerlein v Goch Buildings Ltd 7, which dealt with a contract of sale
of fixed property required to be in writing by law, De Villiers JA, posited that:
“Semper veritati errorem cedere oportet, says Faber in his Code, 4.16. def. 10, the mistake
must yield to the truth. ‘In contracts regard must be had rather to the truth of the matter (rei
veritas) than to what has been written,’ is laid down in C. 4.22. L. 1; and Gothofredus notes:
‘for there may be mistakes in the writing.’
[19] In Leyland (SA) (PTY) LTD v Rex Evans Motors (PTY) LTD 8 the
following was held regarding the rectification of a written agreement:
“A written agreement which fails to express accurately the true intention of the parties may
be rectified so as to make it accord with the parties’ common intention. If the party seeking
rectification can prove an actual agreement anterior to or contemporaneous with the writing
with which the written agreement, owing to a mutual mistake, fails to conform, the Court will
rectify the erroneous instrument.”
6 2001 (3) SA 257 (C) at 282 C
rectify the erroneous instrument.”
6 2001 (3) SA 257 (C) at 282 C
7 1925 AD 282 at 289
8 1980 (4) SA 271 (WLD) at 272F-G
11
[20] Our law is settled as regards the onus on the party claiming rectification
to show, on a balance of probabilities, that the written agreement does not
correctly express what the parties had intended 9. It bears underscoring that the
party seeking rectification bears a heavy onus to prove the common continuing
intention of the parties by clear and convincing evidence. In Propfokus 40 (Pty)
Ltd v Wenhandel 4 (Pty) Ltd 10the precise moment that is crucial i n this regard
was expressed as follows:
“… the written document does not reflect the true intention of the parties – this requires that
the common continuing intention of the parties, as it existed at the time when the agreement
was reduced to writing be established.”
[21] What follows next is the issue of whether a time bar is placed on when a
rectification ought to be sought. Simply put, the question is whether a
rectification lapses. In Boundary Financing Ltd v Protea Holdings ,11 the
following was held in this regard:
‘[12] The appellant, referring to Primavera Construction SA v Government, North -West
Province, and another 2003 (3) SA 579 (B) at 599H -I as authority, submitted that the
respondent’s claim for rectification has in any event prescribed. In terms of s 10 of
the Prescription Act 68 of 1969 read with s 11(d) of that Act, a debt other than the debts
mentioned in ss 11(a) to (c) is extinguished by prescription after the lapse of a period of three
years, save where an Act of Parliament provides otherwise.
[13] ‘A debt’ is not defined in the Prescription Act. Dealing with the meaning of the
Afrikaans ‘`n skuld’ Van Heerden AJA said in Oertel en andere NNO v Direkteur van
Plaaslike Bestuur en andere 1983 (1) SA 354 (A) at 370B:
‘V olgens die aanvaarde betekenis van die begrip slaan “`n skuld” op `n verpligting om iets te
doen (hetsy by wyse van betaling of lewering van `n saak of dienste), of nie te doen nie. Dit
9 Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd 2004 (6) SA
29 (SCA) at para [21]
Levin v Zoutendijk 1979 (3) SA 1145 (W) at 1147 H – 1148 A
10 [2007] 3 All SA 18 (SCA) at 22 a
11 2009(3) SA 447 (SCA)
12
is die een pool van `n verbintenis wat in die reël `n vermoënsbestanddeel en –verpligting
omvat . . ..’
A claim for rectification does not have as a correlative a debt within the ordinary meaning of
the word. Rectification of an agreement does not alter the rights and obligations of the parties
in terms of the agreement to be rectified: their rights and obligations are no different after
rectification. Rectification therefore does not create a new contract; it merely serves to correct
the written memorial of the agreement. It is a declaration of what the parties to the agreement
to be rectified agreed. For this reason a defendant who contends that an agreement sued upon
does not correctly reflect the agreement between the parties may raise that contention as a
defence without the need to counterclaim for rectification of the agreement (see Gralio (Pty)
Ltd v D E Claassen (Pty) Ltd 1980 (1) SA 816 (A) at 824A -C). Should a claim for
rectification of a contract become prescribed after three years parties may become entitled to
rights and subject to obligations wrongly recorded and never intended eg in the case of a debt
secured by a mortgage bond which only prescribes after the lapse of a period of 30
years. That, in my view, is a result never intended by the Prescription Act. It follows that in so
far as it may have been held in Primavera that prescription runs against a claim for
rectification of a contract that decision is wrong.’
[22] In sum, the Supreme Court of Appeal posits that a claim for rectification
does not have as a correlative a ‘debt’ within the ordinary meaning of the
structure of the Prescription Act 68 of 1969 . That being so, it is important to
underscore the import of a rectification, which is to correct the written memorial
of an agreement to reflect the part ies’ actual intent. A rectification does not
serve as a platform for the creation of new rights and obligations. It follows that
serve as a platform for the creation of new rights and obligations. It follows that
it does not prescribe after the lapse of three years. Inevitably, the Seyff erts’
claim to rectify what they advance is an erroneous registration is not barred by
the running of prescription.
[23] Notwithstanding a finding that the Se yfferts have not been ipso facto
barred by prescription, the counterapplication still suffers from a more
fundamental deficiency. The Seyfferts’ allowed the first bond to be registered
13
against the property for nearly nine ( 9) years uninterrupted . It is unassailable
that no challenge to it was made during this time. This prolonged silence, when
considered conjunctively with the principle in our law of caveat subscriptor and
the transparent nature of the Deeds Registry leads to inevitable legal
consequences for the Seyf ferts. A person who signs a contract is bound by the
ordinary meaning and effect of the words appearing above their signature12. The
Seyfferts’ position is further weakened by three factors , (i) the collective facts
create a higher evide ntiary burden,(ii) the registration of second covering
bond, serves to confirm the existence of the first ; and (iii) the illogicality of
registering a second covering bond while holding the position that the first
bond should not exist over the disputed units.
[24] Third, regarding the claim to be “deemed preferent creditors ”, the
Insolvency Act 24 of 1936 determines the ranking of claims. This Court cannot,
by mere declaration, elevate a concurrent creditor (which the Seyfferts are
regarding the transfer of units) or a second bondholder above a first bondholder,
in the absence of a valid subordination agreement or cancellation of the first
bond.13 No such valid instrument has been placed before this Court. A purchaser
who has not taken transfer only has a personal right, which is weak in
insolvency. Moreover, a registered real right cannot be trumped by a prior
personal right. The nub of the matter being that Seyfferts’ conduct is
irreconcilable with their contention that the f irst bond was erroneously
registered.
[25] The line of reasoning that Prevance delayed in enforcing its rights does
not amount to a waiver of those rights. Prevance avers that it is only asserting its
12 Burger v Central South African Railways 1903 TS 571 at 578
13 Harris v Trustee of Buissinne (1840) 2 Menz 105.
14
rights now to protect its security in the liquidation process. 14 The principles of
waiver are well settled in our law.
[26] In the Road Accident Fund v Mothu pi15 the Supreme Court of Appeal
provided abiding principles of waiver, it held:
[14] Against that factual background I turn to the plaintiff’s various responses to the
defendant’s special plea of prescription. Since the court a quo found the waiver issue to be
decisive of the whole matter I propose to commence at that point.
[15] INFERRED WAIVER:
Waiver is first and foremost a matter of intention. Whether it is the waiver of a right or a
remedy, a privilege or power, an interest or benefit, and whether in unilateral or bilateral
form, the starting point invariably is the will of the party said to have waived it. The right in
question in the instant case is the statutory provision specifically accorded to the Fund to
avert claims which are out of time.
“It is a well-established principle of our law that a statutory provision enacted for the special
benefit of any individual or body may be waived by that individual or body, provided that no
public interests are involved. It makes no difference that the provision is couched in
peremptory terms.”
(SA Eagle Insurance Co Ltd v Bavuma 1985 (3) SA 42 (A) 49G-H.)
[16] The test to determine intention to waive has been said to be objective (cf Palmer v
Poulter 1983 (4) SA 11 (T) 20C -21A; Multilateral Motor Vehicle Accidents Fund v
Meyerowitz 1995 (1) SA 23 (C) 26H -27G; Bekazaku Properties (Pty) Ltd v Pam Golding
Properties (Pty) Ltd 1996 (2) SA 537 (C) 543A -544D). That means, first, that intention to
waive, like intention generally, is adjudged by its outward manifestations (cf Traub v
Barclays National Bank Ltd 1983 (3) SA 619 (A) 634H -635D; Botha (now Griessel) and
Another v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) 792B -E); secondly, that mental
reservations, not communicated, are of no legal consequence ( Mutual Life Insurance Co of
reservations, not communicated, are of no legal consequence ( Mutual Life Insurance Co of
New York v Ingle 1910 TS 540, 550); and thirdly, that the outward manifestations of intention
are adjudged from the perspective of the other party concerned, that is to say, from the
perspective of the latter’s notional alter ego , the reasonable person standing in his shoes.
[17] The third aspect has not yet been finally settled by this court, or so it would seem
14 Laws v Rutherfurd 1924 AD 261.
15 2000(4) SA 38 SCA at paragraph 8.
15
(cf Thomas v Henry and Another 1985 (3) SA 889 (A) 896G-898C). What the one party now
says he then intended and what his opposite number now says he then believed, may still be
relevant (Thomas v Henry and Another, supra, 898A-C) although not necessarily conclusive.
The knowledge and appreciation of the party alleged to have waived is furthermore an
axiomatic aspect of waiver (Martin v De Kock 1948 (2) SA 719 (A) 732-733). With those two
qualifications I propose, in this judgment, to apply the test of the notional alter ego.
[18] The outward manifestations can consist of words; of some other form of conduct from
which the intention to waive is inferred; or even of inaction or silence where a duty to act or
speak exists. A complication may arise where a person’s outward manifestations of intention
are intrinsically contradictory, as for instance where one telefax indicates an intention to
waive and another, perhaps as a result of a typographical error, does not. That problem does
not arise in this case and consequently need not be discussed (cf Mahabeer v Sharma NO and
Another 1985 (3) SA 729 (A) 737D -E). Nor is it necessary to consider some of the other
problems relating to waiver which do not arise in this case, such as whether the manifestation
of an intention to waive must of necessity be communicated to the other side, and, if so,
whether by some means or another it must always be “accepted” or acted upon by the other
party (cf Traub v Barclays National Bank Ltd, supra, 634H; Botha (now Griessel) v
Finanscredit (Pty) Ltd, supra, 792B-E; Segal and Another v Segil 1992 (3) SA 136 (C) 144J-
146J; 155B -156J; Southern Witwatersrand Exploration Co Ltd v Bisichi Mining Plc and
others 1997 (3) All SA 691 (W) 700c -702d).
[19] Because no one is presumed to waive his rights (cf Ellis and Others v Laubscher 1956
(4) SA 692 (A) 702E -F), one, the onus is on the party alleging it and, two, clear proof is
(4) SA 692 (A) 702E -F), one, the onus is on the party alleging it and, two, clear proof is
required of an intention to do so ( Hepner v Roodepoort -Maraisburg Town Council 1962 (4)
SA 772 (A) 778D-9A; Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) 704F-H). The
conduct from which waiver is inferred, so it has frequently been stated, must be unequivocal,
that is to say, consistent with no other hypothesis.’
[27] In sum the consistent thread that runs through judicial precedent
underscore that waiver requires a deliberate and unambiguous intention to
relinquish a known right. This has not occurred.
Deliberation
16
[28] Prevance has established a clear right as the cessionary of the first
mortgage bond. The validity of that bond stands. The Seyfferts’ attempts to
impugn the bond lacks sufficient evidentiary weight to overturn the registered
real rights.
[29] The collection of rentals by the Seyfferts prejudices the insolvent estate
and the secured creditors. Those funds belong to the estate of XYD (in
liquidation).
[30] The counterapplication is procedurally and substantively defective. As
alluded to, the claim for rectification has not prescribed . What the Seyfferts
application suffers from is the failure to have provided adequate evidence to
overturn the registered real rights held by Prevance . A close examination of the
Seyfferts’ own conduct goes against the grain of any contention that a waiver of
security occurred.
Costs
[31] The general rule is that costs should follow the result . This general rule
does not impugn the discretion of the court. It bears underscoring that the
counterapplication was meritless. It would serve no basis to regurgitate the
findings in this regard. What stands out is that this litigation has caused
significant prejudice to the insolvent estate by inexorably delaying the
distribution of assets to the body of creditors. It stands to reason that this Court
would be justified in marking its displeasure with an appropriate punitive order
as to costs.
Order
17
[32] In the result, the following order is made:
1. The Main Application is granted.
1.1. The Second and Third Respondents are interdicted and restrained from
collecting any rental income derived from Units 5 to 13 of the Sectional
Title Scheme known as Theresia Park.
1.2. The Second and Third Respondents are ordered to account to the Third
Respondent (the Liquidators) for all rental income collected from the said
units from 1 June 2021 to date.
1.3. The Second and Third Respondents are ordered to pay over to the Third
Respondent (the Liquidators) all amounts identified in the accounting
referred to in paragraph 1.2 above, together with interest a tempore morae.
2. The Counterapplication is dismissed.
3. The Second and Third Respondents (in the main application) and the First
to Fourth Applicants (in the counterapplication) are ordered to pay the costs
of the Main Application and the Counterapplication, jointly and severally,
the one paying the other to be absolved. Such costs are to be taxed on the
scale as between attorney and client.
__________________________________
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
18
Appearances:
For the applicants: Advocate L Hollander
Instructed by: Swartz Weil Van der Merwe Greenburg
Inc.
C/O Maree and Maree Attorneys
Mahikeng
For second and third respondents: S Kroep
Instructed by: Jan Ellis Potchefstroom Inc.
C/O Loubser Ellis & Associates
Mahikeng