Land en Landboubank van Suid Afrika v Meester van die Hooggeregshof Kimberley en Andere (438/89) [1991] ZASCA 38; [1991] 4 All SA 528 (AD) (27 March 1991)

Land en Landboubank van Suid Afrika v Meester van die Hooggeregshof Kimberley en Andere (438/89) [1991] ZASCA 38; [1991] 4 All SA 528 (AD) (27 March 1991)

The court held that section 34(3)(b) of the Land Bank Act does not empower the Land Bank to execute against property or claims where third parties hold real rights of security, such as a cession in securitatem debiti. The statutory wording must be interpreted in its ordinary sense, and there is no clear indication that the legislature intended to override existing rights of secured creditors. In this case, the cooperative held a valid cession over Schreuder's member interests, granting it preference in insolvency. The Land Bank could only execute against the reversionary interest remaining after the secured creditor's claim was satisfied. The application was correctly dismissed by the...

Citation
[1991] ZASCA 38
Parties
Appellant: Land- en Landboubank van Suid-Afrika; Respondent: Meester van die Hooggeregshof, Kimberley; Respondent: Hendrik Petrus A Venter N O; Respondent: Oranje Kooperasie Bpk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 1991
Case Number
438/89
Procedural Posture
Civil Appeal / Appeal From the Northern Cape Division After Dismissal of Application With Costs
Outcome
Appeal dismissed with costs, including the costs of two counsel.
Judges
Joubert, Smalberger, Eksteen, Preiss, Krieger
Legal Topics
Parate Execution, Session in Securitatem Debiti, Insolvency Preference, Statutory Powers of Land Bank, Interpretation of Statutes
Land and Property Civil Procedure Parate Execution Session in Securitatem Debiti Insolvency Preference Statutory Powers of Land Bank Interpretation of Statutes

Case Brief

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Parties

Land- en Landboubank van Suid-Afrika

Appellant

Meester van die Hooggeregshof, Kimberley

Respondent

Hendrik Petrus A Venter N O

Respondent

Oranje Kooperasie Bpk

Respondent

Procedural Posture

Civil Appeal / Appeal From the Northern Cape Division After Dismissal of Application With Costs

Legal Issues

  1. 1 Whether the Land Bank may execute against the proceeds of a member's interest in a cooperative where those interests have been ceded in securitatem debiti to another creditor.
  2. 2 Whether the statutory powers of the Land Bank under section 34(3)(b) of the Land Bank Act override the rights of a sessionary creditor holding security over the debtor's claim.
  3. 3 Whether the trustee of the insolvent estate is obliged to pay the proceeds of the member's interest to the Land Bank or to the cooperative as secured creditor.

Ratio Decidendi

The court held that section 34(3)(b) of the Land Bank Act does not empower the Land Bank to execute against property or claims where third parties hold real rights of security, such as a cession in securitatem debiti. The statutory wording must be interpreted in its ordinary sense, and there is no clear indication that the legislature intended to override existing rights of secured creditors. In this case, the cooperative held a valid cession over Schreuder's member interests, granting it preference in insolvency. The Land Bank could only execute against the reversionary interest remaining after the secured creditor's claim was satisfied. The application was correctly dismissed by the...

Court Disposition

Appeal dismissed with costs, including the costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.