Land Agricultural Development Bank of South Africa v Du Plessis NO and Others (5559/2019) [2020] ZAFSHC 136 (10 August 2020)

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,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 5559/2019

In the matter between:

THE LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA Applicant and A DU PLESSIS N.O. 1st Respondent ANNA JOHANNA DU PLESSIS N.O. 2nd Respondent NANETTE DU PLESSIS N.O. 3rd Respondent COBUS SNYMAN N.O. 4th Respondent CHARLENA SNYMAN N.O. 5th Respondent ANDRIES VAN ROOYEN DU PLESSIS N.O. (first to sixth respondents cited in their capacities as the duly appointed trustees of the Andries van Rooyen Du Plessis

Testamentary Trust (“AVR Trust”), reference MT2944/99) 6th Respondent ANDRIES DU PLESSIS N.O. 7th Respondent ANNA JOHANNA DU PLESSIS N.O. 8th Respondent ANDRIES VAN ROOYEN DU PLESSIS N.O. 9th Respondent NANETTE DU PLESSIS N.O. (seventh to tenth respondents cited in their capacities as the duly appointed trustees of the Anri Boerdery Trust, IT 1915/99) 10th Respondent ANDRIES DU PLESSIS N.O. (ID No: […]) 11th Respondent ANDRIES VAN ROOYEN DU PLESSIS (ID No: […]) 12th Respondent

CORAM: DAFFUE, J

HEARD ON: 6 AUGUST 2020

JUDGMENT BY: DAFFUE J

ORDERS GRANTED ON: 6 AUGUST 2020

REASONS DELIVERED ON: 11 AUGUST 2020

I INTRODUCTION

[1] This is yet another application by a financial institution against financially distressed members of the farming community in the Free State. Having heard argument on 6 August 2020 I granted orders and indicated that my reasons would be presented during the following week. The reasons will be sent to the parties’ legal representatives electronically and hard copies will also be made available in the pigeon holes in the general office in accordance with the standard practice.

[2] The following orders where granted on 6 August 2020:

“IT IS ORDERED THAT:

1. Judgment is granted against the respondents, jointly and severally, the one paying the other to be absolved for payment in the amount of:

1.1 R49 309 242.13 together with compounded interest at a rate of 11.50% per annum, calculated daily and capitalised monthly from 1 October 2019 to date of payment;

1.2 R5 111 783.44 together with compounded interest at a rate of 12.25% per annum, calculated daily and capitalised monthly from 1 October 2019 to date of payment;

2. The first to sixth respondents’ immovable properties described hereunder are declared especially executable:

2.1 Portion 13 of the Farm Sommerville 324, Theunissen District, Free State Province, measuring 313,7391 hectares, held under Deed of Title T24618/2003;

2.2 Portion 8 of the Farm Sommerville 324, Theunissen District, Free State Province, measuring 255,1945 hectares, held under Deed of Title T7469/1976;

2.3 Portion 15 of the Farm Sommerville 324, Theunissen District, Free State Province, measuring 312,8900 hectares, held under Deed of Title T12783/1980;

2.4 Portion 17 of the Farm Sommerville 324, Theunissen District, Free State Province, measuring 299,2979 hectares, held under Deed of Title T2266/1993.

3. The seventh to tenth respondents’ immovable property described hereunder is declared especially executable:

3.1 Portion 10 of the Farm Sommerville 324, Theunissen District, Free State Province, measuring 258,7989 hectares, held under Deed of Title T1060/2000.

4. The eleventh respondent’s immovable property described hereunder is declared especially executable:

4.1 Portion 11 of the Farm Sommerville 324, Theunissen District, Free State Province, measuring 314,0211 hectares, held under deed of Title T6690/1990.

5. The properties referred to in paragraphs 2, 3 and 4 above shall be sold by the Sheriff of the court in conjunction with the applicant or its appointed agent by public auction.

6. Costs of suit on a scale as between attorney and client.”

[3] These are my reasons for granting the relief:

II THE PARTIES

[4] Applicant is the Land and Agricultural Development Bank of South Africa (“the Land Bank”), a statutory body and bank established in terms of the Land and Agricultural Development Bank Act, 15 of 2005. It is also a registered credit provider.

The application is instituted in its capacity as cessionary of debt ceded to it by Suidwes Landbou (Pty) Ltd (“Suidwes”), who is also a registered credit provider.

[5] The first to sixth respondents are the duly appointed trustees of the Andries van Rooyen Du Plessis Testamentary Trust (“the AVR Trust”). Four of them have the surname Du Plessis and two the surname Snyman.

[6] The seventh to tenth respondents are the duly appointed trustees of the Anrie Boerdery Trust. All four of these trustees are also trustees of the AVR Trust and they have the surname Du Plessis.

[7] Andries du Plessis, a sixty-three-year-old male person, is cited as the eleventh trustee and Andries van Rooyen du Plessis, a thirty-six-year-old male, is cited as the twelfth respondent. Both of them are also trustees of the two trusts mentioned above.

III THE RELIEF CLAIMED

[8] Applicant sought judgment against all respondents, jointly and severally, the one paying the other to be absolved, for payment in the amounts of R49 309 242.13 with interest and R5 111 783.44 with interest. Interest has been calculated until 30 September 2019. Interest in the amounts of 11.5% and 12.25% respectively are claimed from 1 October 2019 to date of payment.

[9] Applicant also sought orders that four farms of the AVR Trust, one of the Anrie Boerdery Trust and one of eleventh respondent be declared especially executable and that the sheriff of the court be authorised to sell the properties by public action in conjunction with applicant or his appointed agent. Costs of suit on the scale as between attorney and client were sought as well.

IV THE DEFENCES

[10] The respondents vaguely denied the calculations of their indebtedness, but it is apparent from their answering affidavit that

their real and only material defence is the validity of the cession of the book debts by Suidwes to applicant. They merely denied the cession without making any factual averments why applicant did not have locus standi to claim from them.

V THE APPLICATION FOR POSTPONEMENT

[11] On 5 August 2020 at 16h18 Mr JJ Bekker, an attorney of Bloemfontein, filed a notice of motion and his accompanying affidavit with the registrar. In his affidavit he refers to himself as the “correspondent attorney of record for the applicants.” Later in the affidavit he refers to applicant in the singular. Whoever the applicant, is based on a farm preventing him from attending the attorney’s offices in order to depose to an affidavit. This person approached the attorney’s offices on Friday afternoon 31 July 2020, requesting assistance. According to Mr Bekker his office is not in possession of a complete set of pleadings, “more specifically the opposing documents.” Therefore, “our offices were unable to duly prepare for the hearing.” In paragraph 8 the following is stated: “Our offices have contacted numerous counsel to assist us in this matter and were not successful at all.” During his oral presentation Mr Bekker mentioned that he had contacted at least 20 counsel from the local bar without success. According to Mr Bekker his offices attempted to determine the reason for the previous attorneys’ withdrawal by contacting them, but to date he had not received any reasons. I find this amazing as I would have expected the clients to inform the attorney what transpired between them and their previous attorneys. It is furthermore stated the applicant “is not attempting to obtain a postponement merely to gain time” and that Land Bank will suffer no prejudice if a postponement is granted. The wasted costs were tendered.

[12] I dismissed the application for postponement and indicated that I would set out the reasons therefore in the judgment on the main application. These are the reasons.

[13] In Lekolwane v Minister of Justice and Constitutional Development the Constitutional Court[1] has recently restated that an application for postponement is not there for the taking. It referred to the following usual requirements applicable to applications for postponements:

1. The court has a discretion to grant or refuse postponement which discretion must be exercised in a judicial manner;

2. The applicant for a postponement seeks an indulgence and he or she must show good and strong reasons;

3. The applicant must furnish a full and satisfactory explanation of the circumstances giving rise to the application;

4. The application must be made timeously, i.e. as soon as the circumstances justifying that became known to the applicant;

5. The application must always be bona fide and not used simply as a tactical manoeuvre to gain an advantage;

6. Prejudice shall be considered, especially whether any prejudice caused by the postponement can be fairly compensated by an appropriate order of costs;

7. The balance of convenience or inconvenience to both parties should be considered.

[14] The Constitutional Court went further in Lekolwane[2] and added further factors to be considered, to wit the broad public interest and the prospects of success on the merits.

[15] In Shilubana and Others v Nwamitwa (National Movement of Rural Women and Commission for General Equality as amici curiae)[3] the Constitutional Court considered Lekolwana and added further factors:

“[11] In Lekolwane and Another v Minister of Justice and Constitutional Development this Court added the following factors to be considered in granting a postponement: (1) the broader public interest; and (2) the prospects of success on the merits. The following factors could non-exhaustively be added to the above: the reason for the

lateness of the application if not timeously made; the conduct of counsel; the costs involved in the postponement; the potential

prejudice to other interested parties; the consequences of not granting a postponement; and the scope of the issues that ultimately

must be decided. In balancing these factors it is of vital importance to keep in mind that -

'(w)hat is in the interests of justice will . . . be determined not only by what is in the interests of the parties themselves, but also by what, in the opinion of the Court, is in the public interest. The interests of justice may require that a litigant be granted more time, but account will also be taken of the need to have matters before this Court finalised without undue delay.'”

[16] I have no doubt that the controlling minds of the two trusts are eleventh and twelfth respondents and considering their respective

ages and identity number, they are apparently father and son. Twelfth respondent deposed to the answering affidavit in the main application and eleventh respondent deposed to a confirmatory affidavit. None of the other trustees deposed to any confirmatory affidavits.

[17] On 4 December 2019 the application papers were served on all respondents herein and on 11 December 2019 a notice of intention to oppose was filed on behalf of first, second, third, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents. Bearing in mind the dies non between 21 December 2019 and 7 January 2020, the answering affidavits were to be filed on 20 January 2020. This did not materialise.

[18] On 13 January 2020 another firm of attorneys gave notice of intention to oppose on behalf of all twelve respondents and two days later the first attorneys withdrew as attorneys of record. De Lange Attorneys, acting as correspondents for Beukes and Beukes Attorneys of Bultfontein, were now the new firms of attorneys appearing for all twelve respondents. They filed notices in terms of rules 35(12) and (14) and although I considered the correspondence between the parties as well as the applicant’s responses to the notices in this regard, I deem it unnecessary to deal therewith for purposes of this application. Fact of the matter is that documents were made available to the respondents, but they failed to file their answering affidavits.

[19] As no answering affidavits were filed, the matter was set down for hearing on an unopposed basis on 12 March 2020. Two days before the hearing respondents filed their answering affidavit, which was due some six weeks earlier, as well as an application for condonation. Condonation was granted to respondents who were ordered to pay the costs of the application for condonation on an unopposed basis as well as all the wasted costs occasioned by the application for condonation. The applicant was ordered to deliver its replying affidavit on or before 27 March 2020 and the application was postponed to 30 April 2020 on which date it was removed from the roll due to the lock-down.

[20] Applicant’s replying affidavit was eventually filed on 11 June 2020. Two reasons were tendered for the late filing.

Firstly, settlement negotiations were entered into after receipt of the answering affidavit and secondly, the announcement of the

lockdown with all its adverse consequences. Condonation was sought for the late filing of the replying affidavit and as there was no objection, I accepted it as part of the evidential material.

[21] On 25 June 2020 the main application was set down for hearing on 6 August 2020; thus more than a month’s notice. On 28 July 2020 De Lange and Beukes and Beukes Attorneys withdrew as attorneys of record, a mere nine days before the hearing of the main application.

[22] Prior to the withdrawal of these two firms of attorneys a strange and extremely peculiar event occurred. A letter by eleventh respondent dated 17 July 2020, addressed to Mr Willie Smith of the Bloemfontein branch of the applicant, found its way to the bank. It reads as follows:

“Dear Mr Smith,

Find enclosed the payment and FINAL settlement to the Land and Agricultural Development Bank of South Africa for matter 5559/2019, for accounts:

Term Loan - T180203

Summer Production 2018 – B056921

I trust that you will find the above in order, if you wish to respond you can do so by fax to fax number 086 5679 872.

(Signed A du Plessis)

Sincerely

In pure truth

Andries of the family du Plessis (unlimited)

(Non Assumpsit)”

Attached thereto were two promissory notes, both dated 17 July 2020, in terms whereof eleventh respondent promised to pay to Land Bank the exact capital amounts claimed in the notice of motion, not in once off payments, but in monthly instalments of R98 620.00 and R10 300.00 respectively. These monthly payments were offered to the holder to be collected at farm Sommerville,

Bultfontein, Free State. Clearly these documents were signed and issued by eleventh respondent at a stage when the respondents

were still represented by the aforesaid attorneys. It is apparent from these documents that eleventh respondent, one of the

controlling minds of the two trusts, admitted liability to Land Bank for the capital amounts claimed in the notice of motion. No reference is made to Suidwes in these documents.

[23] On 29 July 2020 and just after the two firms of attorneys withdrew as attorneys of record, Mr Leahy, the attorney of the applicant, wrote a letter to eleventh respondent, making it clear that the documents were of no value whatsoever insofar as they were intended to constitute tenders for valid payment. Three reasons were advanced as to why there was no obligation on applicant to accept the documents. It was already anticipated at that stage that an application for postponement might arise; therefore Mr Leahy stated the following:

“We sincerely hope that the documents were not lodged at the Bloemfontein offices of the Landbank in order to create a false ground for a postponement, or a false ground for a contention that by virtue of our client’s silence it must now be accepted that a valid tender and a valid settlement had been concluded.”

In the last sentence of the letter the author cautioned as follows:

“We intend asking the Court for the relief formulated in the notice of motion and any attempt to orchestrate a postponement will be vigorously opposed.”

This letter was faxed to the fax number presented by eleventh respondent.

[24] On Friday afternoon, 31 July 2020 the matter was allocated to me and on Monday, 3 August 2020 I instructed my secretary to establish from applicant’s attorneys whether they had any information as to who would be representing the respondents in future as I intended to hear the opposed motion by making use of the webex internet platform. It was established that Bekker Attorneys came on board that day. They not only filed a notice of intention to oppose on 3 August 2020, but also notices in terms of rules 7 and 30 of the Uniform Rules of Court. Upon receipt of the letter requesting the attorneys to indicate whether the matter could be dealt with over the internet, Mr Bekker informed my secretary that he did not have proper internet capacity. On Tuesday, 4 August 2020 Mr Bekker confirmed that he received the email of 3 August 2020 from my secretary, but stated that “our offices were only appointed to assist the respondent on same date and therefor our offices did not have sufficient time to duly prepare for the matter.” Applicant’s attorneys were requested to consent to a postponement and wasted costs were tendered. Quite disturbingly, Mr Bekker mentioned the following in his letter:

“Kindly do also note that our Mr Bekker is not available for a court case on Thursday due to a prior engagement.”

[25] The emails of the respective firms of attorneys were considered by me, particularly the request for a postponement and the following was inter alia conveyed to the parties by my secretary:

“If there is no agreement on postponement the matter will be heard in open court on Thursday at 09h30 as previously enrolled. Clearly Mr Bekker will not be available to deal with the matter on the webex internet platform. Mr Bekker shall confirm in writing that he has informed his clients accordingly and explain why he accepted instructions whilst being aware of his prior commitments, alternatively why he cannot instruct counsel or a colleague to appear and argue the matter on behalf of respondents.”

The attorneys were requested to respond by not later than 16h00 that afternoon. Applicant’s attorneys made it clear that their client remained immutable to a postponement and that they would oppose any application in this regard.

[26] Mr Bekker responded as follows:

“Our client were (sic) aware that Mr Bekker will not be available on Thursday 06/08/2020.

Our client wants to make use of Bekker Attorneys because they are satisfied with the service they receive.

We cannot instruct a colleague to appear in court on behalf of Mr Bekker because we do not have the necessary funds on file available at present.”

[27] When the matter was called on Thursday 6 August 2020, Mr Bekker was present in court and argued the application for postponement.

Mr van der Merwe was asked whether applicant intended to file an answering affidavit, but he indicated that due to the late filing of the notice of motion, there was just not enough time to file an answering affidavit and he opted to argue the matter on the papers before the court. During the course of his argument I asked Mr Bekker three times how much time he needed and what his clients tried to achieve with a postponement. He eventually indicated that a postponement for a month would be sufficient, but I am still awaiting an appropriate answer as to what respondents would want to achieve. Mr Bekker indicated that he needed time to peruse the papers and to prepare for a hearing. When I asked why he could not obtain the answering and replying affidavits from the court file in order to make copies, he submitted that the file was with me. This is the most ridiculous answer he could have given. Surely, if he wanted to uplift documents it would be made available to him immediately. It became evident during argument that he only received just enough money on Wednesday afternoon for him to apply for a postponement. He has not been put in funds to deal with the main application at this stage. The agreement between him and the clients is that he would be paid when they receive the proceeds of their harvest. I find it difficult to believe that none of the twenty advocates that Mr Bekker allegedly contacted were unavailable to appear on the 6th. In any event, this explanation is in direct contrast with the contents of the letter referred to above.

[28] Mr Van der Merwe submitted that the respondents are in such dire financial straits that they do not have any ability to pay wasted costs, not to speak of the interest or capital of the claims. Until Wednesday afternoon, Mr Bekker did not have funds in trust to enable him to appoint counsel to appear on his behalf. The debt increases at an alarming rate, bearing in mind that the last payment received from the respondents was in September 2018: two years ago. If respondents cannot even pay their own attorney, there is no possibility that they would be able to pay the applicant’s wasted costs.

[29] The most important aspect to consider in adjudicating the application is whether any good cause has been shown. The only material bone of contention is the validity of the sale and service level agreements between Suidwes and applicant. No facts have been placed before the court by respondents to indicate that these agreements are invalid and/or unenforceable for any specific reason. In any event, it is not for respondents as third parties to rely on alleged invalidity or the non-compliance with certain terms and conditions. In casu applicant and Suidwes entered into their agreements in 2013, seven years ago. They have all along acted based on the sale and service level agreements. Mr Nagel, a senior employee of Suidwes, deposed to the affidavits on the behalf of applicant and there can be no doubt that he would not have done so if these two parties did not consider their agreements valid and enforceable.

The most damning piece of evidence indicating an acceptance of liability towards applicant is the admission of liability contained

in the so-called promissory notes referred to above. Although I cannot find that the two trusts and twelfth respondent are bound by the concession and admission of liability by eleventh respondent, bearing in mind there is no evidence of a resolution or a power of attorney by any of the two trusts or twelfth respondent, the patriarch of the Du Plessis family clearly accepted that the true creditor is the applicant.

[30] I was of the view that respondents did not have any reasonable prospects to successfully oppose the applicant’s application.

I was satisfied that they applied for postponement for tactical reasons only. There may be three reasons why the previous

attorneys withdrew at a late stage and all three reasons would point to tactical manoeuvring to gain time to the prejudice of applicant,

to wit (1) respondents did not want to heed the advice of their previous legal team that they have no prospects of success and

therefore terminated the attorneys’ mandate, (2) respondents failed to place the attorneys in sufficient funds to instruct

counsel, causing them to withdraw and (3) respondents did not properly instruct the attorneys and/or failed to keep communication

channels open, causing the attorneys to withdraw. Respondents failed to explain why the previous attorneys withdrew at the last moment and why they elected to at such short notice appoint an attorney that was not available to represent them at the hearing.

We also do not know why they did not timeously place the new attorney in sufficient funds in order to appoint counsel.

[31] When I asked Mr Bekker why Mr Du Plessis could not depose to an affidavit to explain the reasons for their non-preparedness, I was told that he was busy harvesting. This is just a lame excuse, bearing in mind modern technology. If respondents were bona fide, funds would be made available on Friday, the 31st of July, the application papers would be copied that day and an advocate appointed to prepare and draft heads of argument over the weekend. If respondents did not owe any monies to their previous attorneys, they could have asked them to deliver the full file to the new attorney. If they could not obtain the file from the previous attorneys, they could even have asked applicant’s attorneys to make the required copies. Instead, nothing was done to prepare for an opposed motion, but Mr Bekker opted to try and delay finalisation of the main application by filing notices in terms of rules 7 and 30. I deal with these later and my reasoning in that regard must be read with the reasons advanced thus far. I therefore I dismissed the application with costs.

VI RESPONDENTS’ NOTICE IN TERMS OF RULE 7

[32] The authority of anyone acting on behalf of a party may be disputed. Rule 7 of the Uniform Rules of Court states that this should be done within 10 days after it has come to the notice of a party that such a person is so acting, or with the leave of the court on good cause shown at any time before judgment. When such notice is given, such person may no longer act unless he has satisfied the court that he is authorised so to act.

[33] In casu the period of 10 days has lapsed in December 2019. Before Bekker Attorneys came on record, four sets of attorneys acted for the respondents. Initially Gauteng attorneys Pagel Schulenburg Inc received instructions and they instructed the local firm, Van Wyk and Preller Attorneys. After them Beukes and Beukes and De Lange Attorneys acted for the respondents from January 2020 to July 2020. None of them apparently received instructions to dispute the authority of Leahy attorneys to act for the Land Bank. No rule 7 was served on applicant’s attorneys by these firms.

[34] No good cause has been shown by the respondents or Mr Bekker now appearing for them and leave of the court to rely on rule 7 was not even sought. As mentioned the rule 7 was belatedly served on Monday, 3 August 2020.

[35] I am satisfied that no Gauteng attorney would instruct senior counsel and Bloemfontein attorneys to act on behalf of a party and in particular a State Owned Entity such as the Land Bank without proper authority being granted to it. There is no reason why an attorney would incur enormous costs on behalf of an entity without being duly instructed. Mr Nagel, the Manager: Collections of Suidwes, the company authorised to act as agent for applicant, deposed to the founding and replying affidavits. The documents attached to these affidavits and also provided in terms of rule 35(12) clearly emanated from applicant and Suidwes. If Leahy attorneys were not authorised to launch these proceedings, they would surely not be placed in possession of the relevant documents.

[36] The late filing of the rule 7 notice is a stratagem and nothing but a mala fide attempt to stay proceedings. It clearly demonstrates the attitude with which respondents and their attorney are prepared to misuse the rules in an attempt to obtain benefits that they are not entitled to.

VII THE RESPONDENTS’ RULE 30 NOTICE

[37] As is the case with the rule 7 notice which was served and filed on 3 August 2020, a rule 30 notice was filed as well in terms whereof it is alleged that applicant’s supplementary affidavit “is irregular insofar as the Applicant has not served and file the proper Notices (sic) to accompany same in terms of the Uniform Rules of Court.” Mr Leahy filed the supplementary affidavit on behalf of applicant out of caution and to deal with new aspects that came to light after the filing of the replying affidavit and just before the matter was to be heard. I have dealt with the strange tactics employed by the eleventh respondent in delivering so-called promissory notes. In my view applicant was fully entitled to place these facts before the court and therefore I accepted the supplementary affidavit as I also accepted the late filing of the replying affidavit. There is absolutely no merit in the rule 30 notice and there is no cause of complaint to be removed. Again, it is clear as daylight that the respondents tried to stay adjudication of the application.

VIII MATERIAL UNDISPUTED FACTS

[38] The following material facts are undisputed:

38.1 The sale and cession agreement entered into between applicant and Suidwes on 26 August 2013.

38.2 The service level agreement between the same parties of even date.

38.3 All suretyship agreements relied upon by applicant in respect of the debt of the principal debtor, the AVR Trust.

38.4 The long-term loan agreement in the capital amount of R43.3 million, repayable over a period of 13 years, entered into during October 2016 between the AVR Trust and Suidwes.

38.5 The 2018 summer production credit agreement between Suidwes and the AVR Trust in terms whereof a credit facility of R10 725 000.00 was granted.

38.6 Registration of the various mortgage bonds that serve as security for the debts.

38.7 Receipt by all respondents of the letters of demand dated 20 February 2019 in respect of the debts which at that stage amounted to R49 892 995.25 (of which R7 637 863.81 was in arrears at that stage). In terms of these letters of demand the long-term loan was outstanding in the amount of R45 373 701.80 of which R3 117 933.67 was in arrears as on 1 September 2018 and the 2018 summer production credit facility was outstanding in the amount of R4 519 930.40 of which the total amount was in arrears as on 30 September 2018. Twelfth respondent merely stated that he did not have knowledge of the letters of demand, all sent to the same postal address - the chosen postal address – and therefore denied the applicant’s version which bare denial is rejected as untenable.

38.8 It is admitted that on 28 September 2018 an amount of R523 477.23 was paid in respect of the debt herein and that this was the last payment made.

IX DISPUTED FACTS

[39] As indicated, applicant’s locus standi as creditor is denied. Also, the outstanding amounts and the calculation thereof are challenged without placing any facts before the court which may serve as basis for the denials.

X LEGAL PRINCIPLES

The test in adjudication of opposed motions

[40] A final interdict can only be granted in proceedings on motion if the facts stated by the respondent, together with the admitted facts in applicant’s affidavit, justify the granting thereof. The Supreme Court of Appeal reiterated the well-known principle as follows in Zuma:

[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule 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 (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bold or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.”[4] (emphasis added).

[41] A respondent cannot avail himself in his answering affidavit with bare and unsubstantiated denials. Evidence should be produced in response to the version of the applicant and it is expected to deal with all allegations contained in the founding affidavit, obviously unless there is no other way open to the respondent and nothing more can be expected of him. The warning sounded in Wightman t/a JW Construction v Headfour (Pty) Ltd[5] should be heeded:

“[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.” (Emphasis added).

The right of a third party to argue that a particular agreement is ineffective or invalid

[42] The general rule is that if two parties entered into a contract and if there is or was non-compliance with its terms, it is only the contracting parties who can challenge the validity of the agreement. In Hillock and Another v Hilshage Investments (Pty) Ltd[6] the following was held: “In my judgment this argument has no merit… A third party, such as National Exposition in the present case, cannot seek to rely on the provisions in question, unless it has become a party to the agreement, for example by assignment.”

[43] In the last decade of the previous century four well-known banks and building societies merged into Absa Bank Ltd and in order to achieve a proper merger, agreements were entered into to transfer rights, title and interest in and to the claims against their debtors and their assets to Absa which transfers were subject to consent by the authorities. Absa became embroiled in litigation and one of its debtors disputed its locus standi. It appeared from the evidence tendered at the trial that there were indeed non-compliance with certain terms and conditions, but the court had no hesitation to reject the argument of the close corporation debtor that it was entitled to tell the parties to the contracts who the actual owner of the underlying assets were. Lombard J held as follows: “Dit is myns insiens ‘n onbegonne taak vir verweerders as derdes om nou te poog om die ooreenkoms waaraan die partye daartoe ten volle uiting gegee en oor en weer presteer het te laat ongeldig verklaar.”[7]

XI EVALUATION OF THE EVIDENCE AND SUBMISSIONS

[44] Once Mr Van Der Merwe argued the matter on behalf of the applicant I granted Mr Bekker an opportunity to address me on the main application. He repeated that he was not in a position to do so for the reasons mentioned above. I am satisfied that respondents’ unsubstantiated denials of applicant’s averments in its founding affidavit do not create real and genuine disputes of fact. Respondents did not heed the warning of the Supreme Court of Appeal in Wightman quoted above. No factual foundation has been created in order to try and show that the conclusion of the sale and service level agreements between applicant and Suidwes, which were subject to the fulfilment of certain conditions precedent, did not become

operative. These two parties have been acting in accordance with their agreements since 2013, thus for a period of 7 years.

However, more important than the lack of evidence, is the legal principle that it doesn’t lie in the mouths of the respondents

to endeavour showing that the agreements are invalid and/or unenforceable. As indicated earlier, Mr Nagel, a senior employee of Suidwes, deposed to the founding and replying affidavits on behalf of applicant. His version is not contested on any acceptable and reliable basis. I have no doubt that Suidwes would not allow applicant to, for its own account, claim monies due and payable

to Suidwes. I repeat that no positive facts have been presented to the court to controvert or refute the applicant’s

allegations.

[45] Respondents unequivocally admitted that the AVR Trust and Suidwes concluded the two agreements relied upon by applicant, that monies have been lent and advanced to it and/or credit facilities granted by Suidwes as alleged on behalf of applicant and that the AVR Trust breached both agreements in that it failed to make payments as they fell due. As said, respondents unequivocally admitted the sale and service level agreements entered into between applicant and Suidwes, although it is denied that the rights of Suidwes were legally transferred to applicant. I have also pointed out earlier that all suretyship agreements and mortgage bonds relied upon were admitted. Respondents merely noted the cessions of the mortgage bonds in favour of applicant.

[46] The allegations that the AVR Trust was in arrears in the amount of R10 739 656.30 in respect of the long-term loan agreement and that the amount of R5 111 738.44 was outstanding in respect of the 2018 summer production credit facility as on 1 October 2019 is merely regarded as “unsubstantiated and not supported by any facts.” In terms of the agreements the certificate of indebtedness relied upon is prima facie evidence of the outstanding amounts, but furthermore, Mr Nagel pointed out in the replying affidavit that regular statements were sent to the respondents from time to time and none of the statements were queried at any stage. The same applies to the letters of demand to which I referred above.

[47] Twelfth respondent and his family reside on the farm Panorama which is registered in the name of eleventh respondent, whilst eleventh respondent resides on the farm Toevlug registered in the name of the AVR Trust.

[48] Rule 46A of the Uniform Rules of Court applies whenever an execution creditor seeks to execute against the residential immovable property of a judgment debtor. The words “judgment debtor” refer to natural persons only and exclude legal persons and trusts.[8]

[49] Mr Van der Merwe submitted that all the farms referred to in the notice of motion are utilised as commercial business properties

notwithstanding the fact that eleventh and twelfth respondents may reside on two of those properties. He submitted that the

respondents did not set up any defence against the relief to declare the properties especially executable.

[50] Eleventh and twelfth respondents did not testify that it would be impossible to procure alternative accommodation for themselves and their families. In the special circumstances of this case I have decided to declare all the properties, including the two on which eleventh and twelfth respondents are residing, especially executable. In my view an important objective of the rule is to prevent people, especially the poor, to be divested of a roof over their heads in order to settle a relative small claim. It is just unfair and unacceptable to allow the selling of dwelling house valued at say R50 000.00 or even R200 000.00 to be sold in execution to settle a debt of R1000.00 or even R5000.00. Even if the debt is much higher a reserve price should in principle be set to give effect to equity and the intention of the rule makers.

[51] In casu applicant failed to present the court with the market value of the immovable properties, causing me to seriously consider postponing the application relating to this part of the relief sought and ordering both parties to present supplementary affidavits and valuations to be placed before the court. Mr Van der Merwe submitted that applicant is not in possession of recent valuations, but that the court could be rest-assured that Suidwes who granted credit subject to the securities provided, would not grant credit if it was not satisfied that proper security was tendered. Mr Nagel made the point that “the properties at least had the values as reflected in the various bonds at the time when the bonds were registered,” to wit R67 041 224.00. Respondents merely denied this without providing any facts. Mr Nagel also indicated that due to the present economic and political climate the value of farm properties decreased to about 60% of their former values. I seriously considered to set a reserve price, but that would be very difficult in a situation where the market values of the immovable properties were not known to me. A postponement to obtain valuations would cause further expenses and delay whilst the debt increases at an alarming rate. No payments have been made over the last two years. It is apparent from the evidence that the claims have increased tremendously due to the interest that applicant is entitled to charge on the outstanding capital. The debt is enormous and increases by hundreds of thousands of rand every month. The applicant is entitled to finality as soon as possible. I have been convinced that insofar as applicant, a statutory body and its agent, Suidwes, will do their utmost to ensure that the properties are sold at maximum values in order to settle respondents’ debt, no reserve price should be set.

[52] Paragraph 5 of the notice of motion specifically provided for the properties to be sold by the applicant or its appointed agent in conjunction with the sheriff by public auction or private treaty. Mr Van der Merwe submitted that the rationale for the wording of this paragraph was to ensure that much more publication be given of the intended sales in execution than is required by the sheriff in terms of the rules of court. According to him both the applicant and Suidwes are operating in the farming community and as credible credit providers will ensure that maximum publication be given of the intended sales, unlike the situation where the sheriff advertises a public auction to be held at his offices which is then attended by a few people who are all bargain hunters. I was not prepared to grant an order in the form presented and informed Mr Van der Merwe accordingly. He accepted the wording suggested.

XII CONCLUSION

[53] I therefore confirm that I was satisfied that the respondents’ bold and unsubstantiated denials did not serve to create proper disputes of fact and therefore the money judgment was granted. The immovable properties are primarily used for commercial farming activities and I have been convinced that all these properties should be declared especially executable in order to ensure that applicant’s claim is settled soon. The applicant is entitled to costs on an attorney and client scale as stipulated in the credit agreements, the mortgage bonds, as well as the suretyship agreements. Consequently I made the orders as set out in paragraph 2 above.

_______________

J P DAFFUE J

10 August 2020

On behalf of Applicant: ADV MP VAN DER MERWE SC

Instructed by: McINTYRE & VAN DER POST

BLOEMFONTEIN

On behalf of Respondents: MR JJ BEKKER

Instructed by: BEKKER ATTORNEYS

[1] [2006] ZACC 19; 2007 (3) BCLR 280 (CC) at par 17.

[2] Ibid; see also Magistrate Pangarker v Botha 2015 (1) SA 503 (SCA) at paras 23 -27 and 37 -38.

[3] [2007] ZACC 14; 2007 (5) SA 620 (CC) at par 11.

[4] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at par 26.

[5] [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at par 13. Grarica Property Ltd v Manala 2015 (3) SA 321 (SCA) at 320 C – 321 A

[6] 1975 (1) SA 508 (A) at 515 A – E

[7] ABSA Bank Ltd v CL Von Abo Farm (CC) 1999 (3) SA 262 O at 274D as well as Nedcor Investment Bank Ltd v Visser N.O. & Others 2002 (4) SA 588 T.

[8] See Firstrand Bank Ltd v Fölscher and Another and similar matters 2011 (4) SA 314 (GNP) at 329 H – I and 336 B