Firstrand Bank v Van der Heever and Others (4620/2021) [2022] ZAFSHC 83 (29 April 2022)

Firstrand Bank v Van der Heever and Others (4620/2021) [2022] ZAFSHC 83 (29 April 2022)

The court found that the respondents, as sureties and co-principal debtors, were liable for the principal debtor's indebtedness to the applicant. The pending business rescue application and the liquidation of the principal debtor did not preclude enforcement against the sureties, particularly as the respondents had...

Source-derived case information.

Citation
[2022] ZAFSHC 83
Parties
Applicant: Firstrand Bank Ltd; Respondent: Janette van den Heever; Respondent: Theodorus I van den Heever; Respondent: Therese van den Heever
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 April 2022
Case Number
4620/2021
Procedural Posture
Civil Application / Judgment on Opposed Application for Money Judgment and Condonation
Outcome
Application for condonation dismissed. Judgment granted against respondents, jointly and severally, for the claimed amount plus interest and costs.
Judges
AK Ramlal
Legal Topics
Suretyship, Condonation, Joint and Several Liability, Business Rescue, Liquidation, Enforcement of Judgment
Banking and Finance Civil Procedure Suretyship Condonation Joint and Several Liability Business Rescue Liquidation Enforcement of Judgment

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Firstrand Bank Ltd

Applicant

Janette van den Heever

Respondent

Theodorus I van den Heever

Respondent

Therese van den Heever

Respondent

Procedural Posture

Civil Application / Judgment on Opposed Application for Money Judgment and Condonation

Legal Issues

  1. 1 Whether the respondents, as sureties and co-principal debtors, are liable for the principal debtor's indebtedness to the applicant.
  2. 2 Whether the pending business rescue application or liquidation of the principal debtor precludes enforcement against the sureties.
  3. 3 Whether condonation should be granted for the late filing of the respondents' answering affidavit.

Ratio Decidendi

The court found that the respondents, as sureties and co-principal debtors, were liable for the principal debtor's indebtedness to the applicant. The pending business rescue application and the liquidation of the principal debtor did not preclude enforcement against the sureties, particularly as the respondents had renounced the benefits of excussion in their suretyship agreements. The court held that Section 133(2) of the Companies Act only applies to enforcement against the company itself, not against sureties. The respondents' explanation for the late filing of their answering affidavit was found to be inadequate, lacking detail and substance, and their default was deemed willful. The...

Court Disposition

Application for condonation dismissed. Judgment granted against respondents, jointly and severally, for the claimed amount plus interest and costs.

Orders

  • The application for condonation is dismissed, with costs.
  • Judgment is granted against the respondents, jointly and severally, the one paying the others to be absolved, for the sum of R205,884.78 plus interest at the prime rate plus 11% per annum, calculated daily and compounded monthly in arrears from 1 September 2021 until date of payment, both days inclusive.