Land En Land Bank Van Suid Afrika v Fourie, In re: Oos Vrystaat Kaap Beperk v Fourie (M520/14) [2015] ZANWHC 9 (30 March 2015)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: M520/14

DATE: 30 MARCH 2015

In the matter between:-

LAND- EN LANDBANK VAN SUID AFRIKA........................................................Intervening Party

…....................................................................(Applicant in the Leave to Appeal)

And

JOSEF MARKUS FOURIE..................................................................................................Respondent

IN RE:

OOS VRYSTAAT KAAP BEDRYF BEPERK.......................................................................Applicant

DATE OF HEARING : 13 MARCH 2015

DATE OF JUDGMENT: 30 MARCH 2015

COUNSEL FOR THE APPLICANT : ADV J VORSTER

COUNSEL FOR RESPONDENTS : ADV JP DE BRUIN SC

JUDGMENT

HENDRICKS J

[1] On 11 December 2014 Oos Vrystaat Kaap Bedryf Beperk applied on an urgent basis for the perfecting of a notarial special bond it held over the movable assets of Josef Markus Fourie and ancillary relief. Before the application could be argued in court, I was informed that Land en Landboubank van Suid-Afrika intends to intervene as a party in the proceedings and also wants to apply for the sequestration of Josef Markus Fourie. The intended intervening sequestration application was never issued and filed with

the Registrar of this Court nor has it been served on Oos Vrystaat Kaap Bedryf Beperk. It was not part of the court file bit it was intended to merely hand it up in court. In court, the application by Oos Vrystaat Kaap Bedryf Beperk was moved and an order was granted in the terms of the draft order which followed the prayers in the notice of motion.

[2] This is an application by Land en Landboubank van Suid-Afrika for leave to appeal against the “decision” of this Court not to allow it to intervene. It is contended that the application is premised on the following grounds namely:-

“(b) The court refused to entertain the intervening party’s application for leave to intervene and oppose the Applicant’s application for relief as prayed for in its notice of motion (“the Application for intervention”) thereby effectively refusing the intervening party’s application for intervention.

(c) The court refused to entertain the intervening party’s application for the sequestration of the Respondent’s estate (“the sequestration application”), thereby effectively refusing the sequestration application.”

[3] The contention is further that to refuse the Applicant to intervene without being afforded an opportunity to be heard, amounts to:-

• a flagrant disregard of the audi alteram partem rule;

• a denial of the intervening party’s constitutional rights in terms of section 34 of the Constitution of the Republic of South Africa, 1996 and in terms whereof the intervening party has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court.

[4] The same is also alleged in so far as the sequestration application is concerned. It was contended that this Court erred in granting the requisite prayers for the perfecting of the notarial special bond when Josef Markus Fourie is insolvent and that it would be to the advantage of creditors in general if the estate of Josef Markus Fourie is sequestrated instead of Oos Vrystaat Kaap Bedryf Beperk being given preference over-and-above the other creditors.

[5] During argument in the application for leave to appeal Adv Vorster, acting on behalf of the Applicant (Land en Landboubank van Suid-Afrika), abandoned the application insofar as it concerns the sequestration application. No further submissions with regard to the sequestration were made. Nothing further need to be said insofar as the ground concerning the sequestration is concerned.

[6] As far as the application of Land en Landbank van Suid-Afrika is concerned, as already stated the said application was not issued by the Registrar nor was it filed with the Registrar. Furthermore, no set down was also issued and filed. There was therefore no application for intervention before this Court. Rule 12 of the Uniform Rules of Court states:-

“12. Intervention of Persons as Plaintiffs or Defendants

Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a defendant. The court may upon such application make such order, including any order as to costs, and give such directions as to further procedure in the action as to it may seem meet.”

[7] In order to join as a party, an application to court is required. Rule 12 does not create a right of joinder but makes joinder subject to the court’s discretion. A party seeking to intervene must show that:-

• he is specifically concerned in the issue;

• the matter is of common interest to him and the party he desires to join; and

• the issues are the same.

See:- Harms: Civil Procedure in the Supreme Court page B-III [issue 37] at par. B 12. 3.

Shapiro v South African Recording Rights Association Ltd (Galeta Intervening) 2008 (4) SA 145 (W).

[8] There was no application to intervene before this Court, nor was there any application for joinder. That being the case, it cannot be said that this Court disregarded the audi alteram partem rule. There is a prescribed procedure to be followed by a party who wish to intervene. There must be compliance with the applicable rules before a matter (even for intervention) can be heard by a court.

[9] Sight should not be lost of the fact that what Oos Vrystaat Kaap Bedryf applied for is the perfecting of a special notarial bond. Josef Markus Fourie did not oppose this application. Strictly speaking, it was not necessary for a court order seeing that the goods was specifically bound by the special notarial bond; however, it has become custom to apply for such an order.

See:- Ikea Trading Und Design AJ v Boe Bank Ltd 2005 (2) SA 7 HHA.

Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd & Others 2003 (2) SA 253 (SCA).

[10] A notarial bond is inter partes. It creates rights and act as security when the cessionary is in default. Personal rights is therefore transformed into contractual rights. Of importance is also the fact that this Court did not make a decision or grant an order about the proposed application to intervene. As already alluded to earlier, there was simply no such application before this Court in this regard to adjudicate upon. That being the case, there is simply no decision or order to appeal against. The application for leave to appeal is therefore without any basis and merit.

[11] The manner in which Land en Landboubank van Suid-Afrika attempted to litigate in this matter leaves much to be desired. There was a flagrant disregard of the rules of practice. There was simply no compliance with the Rules of Court. This application for leave to appeal is also ill-conceived. In my view, this Court should demonstrate its disquiet about the conduct by Land en Landboubank van Suid-Afrika by ordering a punitive costs order.

Order:-

[12] Consequently, the following order is made:-

[i] The application for leave to appeal by Land en Landboubank van Suid-Afrika is dismissed.

[ii] The Applicant (Land en Landboubank van Suid-Afrika) is ordered to pay the costs of the application for leave to appeal on the scale as between attorney and client.

[iii] Such costs to include the costs consequent upon the employment of senior counsel.

R D HENDRICKS

JUDGE OF THE HIGH COURT