SPE Project Management CC v Blignaut N.O and Others (4707/2020) [2021] ZAFSHC 328 (21 December 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 4707/2020

In the matter between:

SPE

PROJECT MANAGEMENT CC

Applicant

and

J.G. BLIGNAUT N.O.

1st Respondent

PETRUS

ARNOLDUS ODENDAAL N.O. 2nd Respondent

SUSAN

GERTRUIDA BLIGNAUT N.O. 3rd Respondent

(In their capacities as trustees for the time being of the

JG Blignaut Boerdery Trust, IT no. 883/2012)

BELLA LANDGOED (PTY) LTD

4th Respondent

HENDRIK

CHRISTOFFEL

KRUGER 5th Respondent

HEARD ON:

09 SEPTEMBER 2021

JUDGMENT BY: DANISO, J

DELIVERED ON: This judgment was handed down electronically by circulation to the parties' representatives by way of email and by release to SAFLII. The date and time for hand-down is deemed to be 14H00 on 21 December 2021.

[1] The applicant seeks an order to confirm the rule nisi granted by Jordaan, J on 10 December 2020 perfecting the notarial bond BN2063/2020 (‘the notarial bond’) and permitting the applicant to take possession and retain the respondents’ movable assets to the value of R5 625 000.00 pending the final adjudication of an action to be instituted by the applicant against the respondents for the repayment of loans totalling the amount of R4 115 533.15.

[2] The order was returnable on 28 January 2021. The granting of the final order is opposed by the respondents.

[3] The applicant launched this application on an urgent and ex parte basis on the grounds that the respondents have failed to repay three loans advanced by the applicant and they are currently indebted to the applicant in the amount of R4 115 533.15. The applicant is thus entitled to perfect its security under the notarial bond.

[4] It is the applicant’s case that on 16 January 2020 the parties concluded a consolidation agreement[1] in terms of which several contracts (‘the background agreements’) concluded by the parties including a profit sharing agreement and loan agreements were consolidated. The applicant was also granted a right to register a notarial bond over the respondents’ movable assets as security for the repayment of the loans. The essential terms of the profit sharing agreement were basically that, the fifth respondent (Mr. Kruger) would breed, rear and care for the applicant’s livestock at his farm and at his own cost thereafter the livestock will be sold and the profits generated therein will be shared between the parties. As regards the loan agreements, three loans of R2 000 000.00, R1 200 000.00 and R1 000 000.00 respectively, were advanced to the respondents for the purchase seed, fertilizers, diesel, food mixes, medication and other necessary costs for the upkeep of the livestock.

[5] The notarial bond was registered in favour of the applicant on 04 June 2020 by the Registrar of Deeds, Bloemfontein hypothecating a number of specified movable assets owned by the respondents[2] as covering security for repayment of the loans.

[6] It is trite that:

“Where an order is sought ex parte it is well established that the utmost good faith must be observed. All material facts must be disclosed which might influence a court in coming to its decision, and the withholding or suppression of material facts, by itself, entitles a court to set aside an order, even if the non-disclosure or suppression was not wilful or mala fide.” [3]

[7] Having regard to the opposition and the consequent claim instituted by the applicant under case number 59/2021, I’m of the view that the applicant neglected its obligations to act in good faith in its quest to obtain the urgent and ex parte order and that, if the true facts were disclosed Jordaan, J would not have granted the rule nisi ex parte, alternatively, he would have called for the respondents’ version before granting the rule nisi and I say so for the following reasons:

7.1. There are significant discrepancies existing in the underlying causa upon which the applicant relies for the relief it seeks in this matter, namely, the identity of the parties to the background agreements, their respective obligations and the amounts allegedly owed to the applicant.

7.2. Despite the applicant’s allegations that the profit sharing agreement

involved the applicant and Mr. Kruger the available facts establishes that an entity named Orange Kwagga was also a party to the agreement. See clause 1 of the consolidation agreement the parties to the agreement are:

“SPE Project Management CC…and Orange Kwagga (Pty) Ltd being the livestock owners….”

7.3. In the summons, the applicant is also cited as a co-plaintiff together with Orange Kwagga (Pty) Ltd.

7.4. It is also not clear how the liability of the first, second, third and fourth respondents arises and the alleged breach thereof on the basis of an agreement which according to the applicant was concluded with Mr Kruger only[4].

7.5. As regards the respondents’ indebtedness, in this application the applicant contends that the loans were advanced to the respondents by the applicant and they are accordingly indebted to the applicant jointly and severally in the total amount of R4 115 533.15.

7.6. In the summons it is alleged that the loans were advanced to the respondents by the applicant and Orange Kwagga. The total amount also differs. It is alleged to be amount of R4 765 491. 41.

7.7. Lastly, the applicant seeks to perfect its security for a debt owed to it another entity, Orange Kwagga under a notarial bond which only covers the applicant.

[8] It is for these reasons, above, that I’m not satisfied that the applicant has made out a proper for the granting of the order sought.

COSTS

[9] There is no reason why the costs should not follow the result.

[10] In the premises, the following order is granted:

(1) The rule nisi is discharged.

(2) The applicant shall pay the respondents’ costs.

N S DANISO, J

APPEARANCES:

Counsel on behalf of Applicant: Adv. N. Snellenburg, SC

Instructed by: Symington & De Kok

BLOEMFONTEIN

Counsel on behalf of Respondents: Adv. R. van der Merwe

Instructed by: GD Hoffman, Maree & Partners

[1] Annexure “C” of the founding affidavit is the copy of the said agreement titled “Memorandum of Agreement”.

[2] Annexure A to the notarial bond is a list of the said assets.

[3] National DIRECTOR OF PUBLIC PROSECUTIONS v BASSON 2002 (1) SA 419 (SCA) at 428 paragraphs H-J.

[4] Paragraph 25 of the applicant’s founding affidavit.