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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 2025-073759
In the matter between:
FIRSTRAND BANK LIMITED Applicant
and
ANDRIES-HERMANN REYNECKE First Respondent
(Identity Number: 6[...])
CONRAD MORNE COETZER Second Respondent
(Identity Number: 7[...])
DAVID ANDRIES BRANDT Third Respondent
(Identity Number: 7[...])
HANS HINNER KÖSTER Fourth Respondent
(Identity Number: 6[...])
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
…………..…………............. 29/05/2026
SIGNATURE DATE
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HEIKO KÖSTER Fifth Respondent
(Identity Number: 6[...])
AGRI SEVEN PROPERTY GROUP (PTY) LIMITED Sixth Respondent
(Registration Number: 2014/172205/07)
FEED FIRST (PTY) LIMITED Seventh Respondent
(Registration Number: 2010/019857/07)
SUPPLIO (PTY) LIMITED Eighth Respondent
(Registration Number: 2013/216830/07
and
3S HOLDINGS (PTY) LTD First Intervening Party
(Registration Number: 2005/035246/07)
RANKIN INVESTMENT HOLDINGS (PTY) LTD Second Intervening Party
(Registration Number: 2017/376961/07)
HH KOSTER (PTY) LTD Third Intervening Party
(Registration Number: 2015/360048/07)
FUNDAMENTAL FEED (PTY) LTD Fourth Intervening Party
(Registration Number: 2011/108123/07)
HEIKO KOSTER INVESTMENTS (PTY) LTD Fifth Intervening Party
(Registration Number: 2015/294212/07)
JUDGMENT
GRIESSEL AJ:
INTRODUCTION
[1] The Applicant seeks payment from the First to Fifth and Seventh
Respondents (“the Respondents”) in their capacities as sureties and co -
principal debtors for the indebtedness of Ba rnlab (Pty) Ltd (“Barnlab”) and
Kaonne Investments (Pty) Ltd (“Kaonne”).
[2] The First to Fifth Intervening Parties seek leave to intervene in the
proceedings to pursue what is described as a counterclaim against the
Applicant.
[3] The Respondents do not dispute the existence of the relevant loan
agreements, the facility agreement, or the suretyships upon which the
Applicant relies.
THE FACTS
[4] On 06 June 2016, the Applicant and Barnlab concluded a written loan
agreement in terms of which the Applicant advanced R14,4 million to
Barnlab, repayable in monthly instalments over 120 months (“the first
Barnlab loan”). The first Barnlab loan bore interest at the Applicant’s prime
lending rate, calculated daily and compounded monthly. In terms of the first
Barnlab loan, a certificate signed by a manager of the Applicant would
constitute prima facie proof of the amount owing, the applicable interest, and
the rate of interest.
[5] On 15 January 2019, the Applicant and Barnlab concluded a second written
loan agreement, pursuant to which the Applicant advanced a further sum of
R10 million, repayable in monthly instalments over 60 months (“the second
Barnlab loan”). The remaining terms of the second Barnlab loan were
materially similar to those contained in the first Barnlab loan.
[6] On 22 May 2022, the Applicant concluded a written facility agreement with
Barnlab and Kaonne (“the facility agreement”). The facility agreement
recorded the existence of the first and second Barnlab loan agreements and
provided a further short -term direct facility of R10,5 million. This facility was
repayable on demand. In terms of the facility agreement, a certificate signed
by a manager of the Applicant would constitute prima facie evidence of the
outstanding amount, the interest payable on the facility , and the applicable
interest rates.
[7] Between June 2016 and May 2022, the Respondents executed various
Deeds of Suretyship in favour of the Applicant. In terms thereof, the
Respondents bound themselves, jointly and severally, as sureties and co -
principal debtors for the obligations of Barnlab and Animal N utrition Health
(Pty) Ltd (“ANH”) to the Applicant. In terms of the Deeds of Suretyship, a
certificate signed by any manager of the Applicant would be prima facie
proof of the sureties’ indebtedness under the Suretyships, and the sureties
accepted liability for all legal costs incurred by the Applicant in successfully
enforcing or preserving its rights under the Suretyships on the scale as
between attorney and client.
[8] During July 2019, ANH, a wholly owned subsidiary of Kaonne and the only
profit-generating entity within the group of companies, was sold to a third
party with the consent of the Applicant.
[9] By October 2019, Barnlab had failed to provide the Applicant with its audited
financial statements and had recorded a significant trading loss. These facts
constituted a breach of the second Barnlab loan. Against that backdrop, and
following the sale of ANH, the Applicant advised the First Respondent that
the group of companies’ indebtedness to the Applicant would be reduced.
[10] At the end of October 2019, the Applicant reduced the facility limit on
Barnlab’s overdraft account from approximately R13,9 million to
approximately R8 million. The overdraft facility was repayable on demand.
Importantly, this reduction did not affect the indebtedness arising from the
first and second Barnlab loans, which were term loans repayable over fixed
terms.
[11] During October 2019, deposits were made into Barnlab’s overdraft account,
reducing the indebtedness from approximately R13,2 million to
approximately R4,3 million.
[12] Almost three years later, in August 2022, Barnlab was placed in voluntary
liquidation. Thereafter, Kaonne, represented by the First Respondent,
disposed of two immovable properties during October 2023 and February
2024, respectively. Kaonne was placed in voluntary liquidation in March
2024. A third immovable property was later sold by Kaonne’s liquidators.
[13] As at 31 March 2025, Barnlab remained indebted to the Applicant in
amounts exceeding R12 million under the facility agreement and the two
Barnlab loan agreements. The Applicant, as it is contractually entitled to do,
relies in this regard upon a certificate of balance as prima facie proof of
indebtedness. The Applicant now claims payment of the amounts owed by
Barnlab under the aforementioned agreements from the Respondents , as
sureties and co-principal debtors for Barnlab’s indebtedness.
[14] Against this factual backdrop, the four grounds for the Respondents’
opposition to the application must be considered. Firstly, the Respondents
contend that the Applicant ought to have proceeded by way of action
because of disputes of fact, which cannot properly be determined on affidavit
and which the Applicant ought reasonably to have been aware of. Secondly,
the Respondents contend that the Applicant’s reduction of the Barnlab
overdraft facility in 2019 resulted in the liquidation of Barnlab and Kaonne
and affords the Respondents a defence to liability as sureties. The third
ground for the Respondents’ opposition of the application is their allegation
that the certificates of balance relied upon by the Applicant have been
sufficiently impugned to place the indebtedness genuinely in dispute.
Fourthly, the Respondents contend that they “through the intervening
parties” have a counterclaim against the Applicant in the sum of
approximately R96,6 million , which ought to be determined as part of the
present application. See in this regard paragraphs 39 to 45 of the
Respondents’ answering affidavit and paragraph 2.4 of their heads of
argument.
[15] I will deal with each of these grounds of opposition below.
ALLEGED DISPUTES OF FACT
[16] It is well established that, where in motion proceedings disputes of fact arise
on the affidavits, a final order can be granted only if the facts averred in the
Applicant’s affidavits, which have been admitted by the Respondent,
together with the facts alleged by the Respondent, justify such an order.
However, if the Court is satisfied as to the inherent credibility of the
Applicant’s averments, it may proceed on the basis of the correctness
thereof and include these facts among those upon which it determines
whether the Applicant is entitled to final relief. (See in this regard Plascon-
Evans Paints (Pty) ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623
(A) at 634 H – 635 B).
[17] In National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at paragraph [26] , the Supreme Court of Appeal held that a court will
not be deprived of the power to grant final relief on motion merely because a
respondent purports to raise fictitious disputes of fact, or where the
Respondent’s version is palpably implausible, far -fetched or so clearly
untenable that the court is justified in the rejecting them on the papers.
[18] In the present matter, the material facts giving rise to the Applicant’s claim
are common cause. The Respondents do not dispute the conclusion of the
first and second Barnlab loan agreements, the facility agreement, or the
various Deeds of Suretyship. Nor do they dispute that Barnlab and Kaonne
became indebted to the Applicant under those agreements and that payment
has not been made.
[19] Properly analysed, the Respondents’ opposition does not reveal disputes of
fact requiring oral evidence. Their objections concern legal consequences
allegedly flowing from the Applicant’s conduct, criticism of the certificates of
balance, and an alleged counterclaim. As demonstrated below, these issues
do not constitute factual disputes incapable of determination on the papers.
[20] I am satisfied that the matter is capable of proper determination on motion.
REDUCTION OF BARNLAB’S OVERDRAFT LIMIT
[21] It appears that the Respondents’ principal defence is that the Applicant’s
reduction of a Barnlab overdraft limit during October 2019 caused the
ultimate liquidation of Barnlab and Kaonne and therefore prejudiced the
Respondents in their capacities as sureties. The defence is unsustainable,
both factually and legally.
[22] The factual foundation for this defence is notably weak. In the answering
affidavit, the Respondents themselves attribute the financial distress
experienced by Barnlab and Kaonne to the disruptive effects of the Covid-19
pandemic, increased loadshedding, outbreaks of bird flu and foot-and-mouth
disease, and the economic consequences of the R ussian invasion of
Ukraine. These events, on the Respondents’ own version, constituted
significant external causes of the deterioration in the companies’ financial
position.
[23] The overdraft limit was reduced at the end of October 2019. After this,
Barnlab itself reduced its overdraft indebtedness from approximately R13,2
million to approximately R4,3 million. Significantly, substantially more was
deposited into the account than was strictly required to comply with the
reduction in the facility limit. This is inconsistent with the Respondents’
contention that the reduction rendered the business commercially unviable
or caused its financial collapse.
[24] The Respondents failed to produce any factual evidence to support their
bald and sketchy allegations in the answering affidavit that the Applicant
unilaterally deducted “various amounts” from “various facilities” to bring the
facility in line with the reduced limit.
[25] In the replying affidavit, the Applicant points out that the payments to reduce
Barnlab’s indebtedness under this overdraft facility were made via electronic
fund transfers by the relevant account holders.
[26] If B arnlab or Kaonne considered the reduction of the overdraft limit to be
unlawful or contrary to the parties’ contractual arrangement, legal recourse
was available. No such challenge was pursued, and the reduction was
accepted without any hue or cry at the time. To the contrary, substantially
more was paid into the account than was strictly required to comply with the
reduction. In addition, during May 2022 – more than two years later –
Barnlab and Kaonne entered into the facility agreement with the Ap plicant.
In doing so, they expressly recognised the continued existence of the first
and second Barnlab loans and accepted a further facility of R10,5 million.
Such conduct is irreconcilable with a contemporaneous belief that the
Applicant had acted unlawfully in reducing the limit of the facility in question
in October 2019. During argument, Mr Strydom, on behalf of the
Respondents, conceded that the Applicant’s reduction of this facility limit did
not constitute a breach of the Applicant’s contractual obligations.
[27] The Respondents’ contentions in this regard are further contradicted by the
financial statements of Barnlab and Kaonne for the financial year ending
February 2021. Those statements, signed by the First Respondent,
recorded that the directors were satisfied that the companies possessed
adequate resources to continue in operational existence for the foreseeable
future, remained financially sound, and had access to sufficient borrowing
facilities.
[28] Those contemporaneous statements stand in s tark contrast to the
Respondents’ present attempt to attribute the companies’ demise to the
reduction of an overdraft facility some years earlier. Had the reduction truly
caused the financial consequences now alleged, one would have expected
such concerns to feature prominently in the financial statements. They do
not.
[29] In any event, this defence raised by the Respondents encounters
insurmountable legal difficulty. The overdraft facility was repayable on
demand. The Applicant was therefore contractually entitled to call up the
entirety of the indebtedness at any time. Instead, it merely reduced the limit ,
allowing the facility to continue operating at a lower level.
[30] Equally important is that the indebtedness sought to be recovered in these
proceedings does not arise from the overdraft facility of which the limit was
reduced in October 2019. The Applicant seeks payment under the first and
second Barnlab loan agreements and the facility agreement relating to
account number 6[...]. Those agreements remain intact and unaffected by
the reduction of the overdraft facility.
[31] The facility agreement concluded in May 2022 was to afford Barnlab and
Kaonne a facility on three separate accounts, with an aggregate limit of
R10,5 million. These accounts included account number 6[...] and account
number 6[...]2, the latter being the account on which the facility limit was
reduced during October 2019. During argument, counsel for the
Respondents contended that there is ambiguity regarding the accounts
relied upon by the Applicant under the facility agreement for the present
application. In this regard, reliance was placed on a letter of demand dated
11 November 2024, in which the Applicant’s attorney recorded that Barnlab
was indebted to the Applicant in respect of four accounts, namely the three
accounts forming the subject of the present application, as well as account
number 6[...]2.
[32] This issue was, however, not raised in the Respondents’ answering affidavit.
Consequently, the Applicant was afforded no opportunity to deal with these
allegations in reply. In the circumstances, the Respondents cannot seek to
rely upon this contention for the first time during argument.
[33] In any event, on the papers before this Court, the Applicant does not seek
payment in respect of account number 6[...]2. Furthermore, I fail to see how
the reduction of the overdraft facility limit on that account could conceivably
constitute a defence to the Applicant’s claim.
[34] In light of the above, the Respondents have failed to establish any factual or
legal basis upon which the reduction of the Barnlab overdraft facility in
October 2019 can constitute a defence to the Applicant’s claims under the
loan agreements, facility agreement and suretyships.
[35] There is no general principle in our law that, if a creditor should do anything
in his dealings with the principal debtor which has the effect of prejudicing
the surety, the latter is fully released. Prejudice caused to the surety can
only release the surety, whether totally or partially, if the prejudice is the
result of a breach of some or other legal duty or obligation. (See in this
regard Absa Bank Ltd v Davidson 2000 (1) SA 1117 (SCA) at paragraphs
[14] and [19]).
[36] On the evidence, the Respondents fail to establish any breach of a legal duty
or any other obligation by the Applicant. To the contrary, during argument,
counsel for the Respondents conceded that the reduction of the limit on
Barnlab’s overdraft facility in October 2019 did not constitute a breach of
contract by the Applicant.
CERTIFICATES OF BALANCE
[37] The Respondents contend that the certificates of balance relied upon by the
Applicant may not accurately reflect the amount of the Respondents’
indebtedness. Their challenge rests upon three contentions: (1) that interest
accrued after the winding-up of Barnlab and Kaonne ; (2) that an amount of
R461 385.36 was debited to an account during 2023; and (3) that Barnlab
held a credit with Eskom in the amount of R500 000.00, which was not
pursued by Barnlab’s liquidators.
[38] The agreements concluded between the parties expressly provide that a
certificate signed by a manager of the applicant shall constitute prima facie
proof of the indebtedness, the applicable interest, and the rate of interest.
Such provisions are commonplace in commercial agreements and have
repeatedly been recognised by our courts as valid and enforceable.
[39] In Berlesell (Edms) Bpk v Lehae Development Corporation BK en
Andere 1998 (3) SA 220 (O) at 226 J to 227 C , the Court held that, where
the parties have agreed that a certificate of balance would serve as prima
facie proof, such prima facie proof was inherent in the certificate per se, and
not in the evidence.
[40] The certificate , therefore, constitutes evidence of an amount owing unless
and until credible rebutting evidence is placed before the Court. If the prima
facie evidence or proof established by the certificate remains unrebutted, it
becomes sufficient proof of the fact or facts contained therein. (See in this
regard Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) at 382 G to
383 A).
[41] The enquiry is therefore whether the Respondents have produced evidence
sufficient to rebut the evidentiary value of the certificates relied upon by the
Applicant. They have not done so.
[42] The Respondents’ first complaint concerns the accrual of interest after the
winding-up of Barnlab and Kaonne. The contention in this regard is
misconceived. The indebtedness in issue bears contractually agreed
interest. The Respondents have identified no legal principle which precludes
contractual interest from accruing after the liquidation of the principal debtor.
Counsel for the Respondent was unable to refer me to any authority in
support of the Respondents’ contentions in this regard. The mere fact of the
principal debtor’s winding -up does not extinguish the underlying
indebtedness or nullify agreed contractual provisions concerning interest.
[43] For their contentions in this regard, the Respondents relied on Section 103
of the Insolvency Act, 24 of 1936.
[44] The Respondents’ contentions on this issue are founded on a
misinterpretation of the aforementioned section. Properly construed, the
section does not affect the extent of the principal debtor’s indebtedness,
including any liability for interest. Its effect is confined to regulating the
extent to which a creditor may recover payment, including payment in
respect of interest, from the insolvent estate. In any event, Section 103
concerns payment of unsecured claims, whereas the Applicant’s claim was
secured. Secured claims are governed by Section 102 of the Insolvency Act,
which likewise regulates a creditor’s entitlement to payment, including
payment in respect of interest, from the insolvent estate. Neither Section
102 nor Section 103 alters the underlying indebtedness of the principal
debtor, nor do they have any bearing upon the liability of a surety.
[45] The Respondents’ second complaint relates to a debit of R461 385.36
reflected on an account during January 2023. The evidence demonstrates
that this debit pertained to the Barnlab overdraft account , of which the limit
was reduced as aforesaid, and not to the indebtedness presently claimed
under the first and second Barnlab loan agreements or the facility
agreement. The amount accordingly has no bearing on the Respondents’
liability in these proceedings. In any event, the debit represented costs
associated with the administration of Barnlab’s insolvent estate.
[46] The third complaint against the certificates of balance concerns an alleged
credit owed to Barnlab by Eskom in the amount of R500 000.00. Accepting
that the amount was owed by Eskom to Barnlab does not affect the
indebtedness due to the Applicant at the time the certificate of balance was
issued. A debtor’s entitlement to recover monies from a third party does not
extinguish or suspend its obligations to a creditor. The existence of an asset
in the insolvent estate cannot, without more, constitute a defence to a claim
brought against the sureties and co-principal debtors.
[47] In any event, the liquidators of Barnlab have since recovered the amount of
R500 000.00 from Eskom, resulting in a further dividend paid to the
Applicant. During argument, an amended certificate of balance was handed
up, which provided for this credit that was received after the Applicant ha d
instituted the application. To the extent that the certificate that was handed
up during argument reflects the balance due as at the date of the hearing, it
is nothing more than an arithmetic calculation based on the facts already
before the Court. To the extent that the certificate reflects additional
payments received by the Applicant after the application was instituted, the
Applicant is entitled to abandon part of the relief it seeks. Such a certificate
performs a useful function and does not constitute inadmissible new
evidence. (See Rossouw v First Rand Bank Ltd 2010 (6) SA 439 (SCA) at
paragraph [48].
[48] In any event, the Respondents bound themselves not merely as sureties but
as co -principal debtors. In doing so, they tacitly renounced the benefit of
excussion. The Applicant is therefore entitled to pursue the Respondents
directly without first exhausting remedies against Barnlab or Kaonne.
Should the insolvent estates later yield dividends, the Respondents’ liability
will reduce correspondingly.
[49] The Respondents have failed to place before the Court evidence sufficient to
rebut the prima facie proof constituted by the Applicant’s certificates of
balance. The certificates , therefore, stand uncontested and establish the
indebtedness claimed by the Applicant.
ALLEGED COUNTERCLAIM
[50] The Respondents contend that the shareholders of Kaonne have a claim
against the Applicant in the amount of R96 610 000.00, allegedly arising
from losses suffered from the disposal of Kaonne’s immovable assets at
values allegedly below market value. These allegations are advanced under
the rubric of the “Respondents’ counterclaim”.
[51] The argument pr oceeds as follows: The Respondents contend that three
immovable properties owned by Kaonne possessed an aggregate value of
approximately R120 million during 2019 but were ultimately sold for
approximately R24,5 million. The difference between these figures is said to
present damages suffered by Kaonne’s shareholders as a consequence of
the Applicant’s alleged unlawful conduct in reducing the Barnlab overdraft
facility during 2019. The Respondents allege that “… due to the liquidation
of Kaonne, which was solely as a result of the unilateral and unlawful
conduct of the applicant …, these properties were sold on auction for the
aggregate sum of approximately R24,5 million.”
[52] The difficulty with this argument begins at a factual level.
[53] Two of the three immovable properties were sold by Kaonne itself before its
liquidation. The third property was sold by Kaonne’s liquidators after the
liquidation. The Applicant did not sell any of the properties. Any complaint
concerning an alleged sale below value cannot readily be attributed to the
Applicant’s conduct.
[54] In addition, the valuations relied upon by the Respondents date from 2019,
while the sales occurred during 2023 and 2024. The Respondents
themselves attribute substantial adverse economic consequences to
external events , including the Covid -19 pandemic, loadshedding, animal
disease outbreaks, and geopolitical instability. In those circumstances, there
is no evidentiary basis upon which this Court can conclude that the 2019
valuations represented the market values of the respective properties in
2023 and 2024.
[55] More fundamentally, however, the alleged counterclaim faces
insurmountable legal obstacles.
[56] The claim is for pure economic loss. Our law does not regard conduct
causing pure economic loss as prima facie wrongful. Wrongfulness must be
established by reference to a legal duty resting upon the alleged wrongdoer.
The Respondents have failed to identify any legal duty breached by the
Applicant. As already stated, counsel for the Respondents conceded during
argument that the Applicant acted within the confines of its contractual rights
when it reduced the limit of a facility which it was entitled to call up in full.
[57] The Respondents encounter a further fatal difficulty. They do not allege that
they themselves are shareholders of Kaonne who suffered a personal loss.
To the contrary, it is the express case advanced in the intervention
application that the shareholders of Kaonne are the intervening parties. At
best for the Respondents, therefore, the claim contended for belongs to
persons who are not presently before Court as Respondents.
[58] Even if the claim were considered from the perspective of the intervening
parties, the position remains unchanged. It is trite that a company
possesses a legal personality separate and distinct from its shareholders.
The property of a company vests in the company itself and not in its
shareholders. A diminution in the value of shares consequent upon loss
suffered by the company constitutes reflective loss and does not ordinarily
find a personal claim by shareholders against the alleged wrongdoer.
[59] Where a company suffers a loss , the right to recover vests in the company
itself. The company’s inability or unwillingness to sue does not transform a
corporate loss into a personal claim belonging to the shareholders.
[60] Even if one assumes in favour of the Respondents that the properties were
sold below value and that some form of wrongful conduct existed –
assumptions unsupported by the evidence – the claim would remain one
vesting, if at all, in Kaonne itself. It would not vest in its shareholders, nor in
the Respondents in their personal capacities.
[61] The so -called counterclaim is therefore misconceived both factually and
legally. It affords no defence to the Applicant’s claim.
INTERVENTION APPLICATION
[62] The intervening parties seek leave to intervene in the present proceedings in
order to pursue what is described as a counterclaim against the Applicant.
Their case is founded upon the alleged diminution in the value of Kaonne’s
immovable properties and the contention that they, as shareholders of
Kaonne, suffered loss as a result of the Applicant’s conduct.
[63] The application for intervention cannot succeed.
[64] It is trite that a party seeking leave to intervene must establish a direct and
substantial interest in the subject matter of the litigation, which may be
prejudicially affected by the order ultimately granted. The interest must be a
legal interest in the proceedings themselves , and not merely a financial or
indirect concern with the outcome.
[65] The relief sought by the Applicant in the present matter is straightforward.
The Applicant seeks money judgments against the Respondents in their
capacities as sureties and co -principal debtors for the indebtedness of
Barnlab and Kaonne. The proceedings do not concern the ownership of
Kaonne’s immovable properties, the conduct of Kaonne’s liquidators, or any
independent damages claim which the intervening parties contend they may
have against the Applicant.
[66] As already explained, the alleged claim advanced by the intervening parties
constitutes, at best for them, a claim for reflective loss arising from an
alleged diminution in the value of their shareholding in Kaonne. Our law
does not recognise such a claim as belonging to shareholders where the
underlying loss is suffered by the company itself. The claim which the
intervening parties seek to pursue against the Applicant is not recognised in
our law.
[67] Even if the law recognised such a claim, the intervening parties would still
fail to demonstrate a direct and substantial interest in the present
proceedings. The granting of judgment against the Respondents will not
extinguish or compromise any rights which the intervening parties claim to
have against the Applicant. They remain free to institute whatever
proceedings they may be advised to pursue against the Applicant.
[68] The interven ing parties, accordingly, have no legal interest in the money
judgment sought against the Respondents that may be prejudicially affected
by the outcome of these proceedings. The application for intervention must
therefore fail.
COSTS
[69] The Applicant has achieved substantial success both in the principal
application and in opposing the intervention application. There is no reason
why costs should not follow the result.
[70] The Respondents bound themselves in the Deeds of Suretyship to liability
for costs on the scale as between attorney and client. The contractual
undertaking is enforceable , and there is no basis upon which this Court
should decline to give effect to it.
[71] As regards the intervention application, the intervening parties sought relief
which was legally untenable and incapable of constituting a defence to the
Applicant’s claim. In the circumstances , the Applicant is entitled to its costs
of opposing the intervention application, including the costs of counsel on
Scale C.
[72] In the result, I make the following order as set out in the draft order , which
appears at CaseLines 072 -21 to 072-23 and which I have initialled and
marked “X”:
1. The application for leave to intervene is dismissed.
2. The intervening parties are ordered to pay the costs of the
intervention application, including cost of counsel on Scale C.
3. Judgment is granted against the First to Fifth and Seventh
Respondents, jointly and severally:
3.1 In the sum of R630 063.91 plus interest thereon at the prime
rate (currently 10.25%) plus 1.00% per annum, calculated
daily and capitalised monthly from 1 May 2026 to date of
payment, both days inclusive;
3.2 In the sum of R7 392 150.08 plus in terest thereon at the
prime rate (currently 10.25%) per annum, calculated daily
and capitalised monthly from 19 March 2025 to date of
payment, both days inclusive; and
3.3 In the sum of R4 349 228.02 plus interest thereon at the
prime rate (presently 10.25%) per annum, calculated daily
and capitalised monthly from 19 March 2025 to date of
payment, both days inclusive.
4. The First to Fifth and Seventh Respondents are ordered to pay the
costs of the application, jointly and severally, on an attorney and
client scale.
_______________________________
GRIESSEL AJ
ACTING JUDGE OF THE HIGH COURT