Taljaard and Another v Land and Agricultural Development Bank of South Africa and Others (1094/2022; 963/2021; 964/2021; N557/2021; 2436/2021;) [2025] ZANCHC 5 (24 January 2025)

IN THE HIGH COURT OF

SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

CASE NO.: 1094/2022

Date heard: 22-05-2024

Date delivered: 24-01-2025

Reportable:

Yes/No

Circulate to Judges: Yes/No

Circulate to Magistrates: Yes/No

In the matter between:

SHANIE

TALJAARD

1st Applicant

CURRO CONSULTANCY (PTY)

LIMITED 2nd Applicant

And

THE

LAND AND AGRICULTURAL DEVELOPMENT BANK

OF

SOUTH

AFRICA

1st Respondent

MINISTER

OF TRADE AND

INDUSTRY

2nd Respondent

MINISTER

OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT

3rd Respondent

COMPANIES

AND INTELLECTUAL PROPERTY

COMMISSION (CIPC)

4th Respondent

JOCHEN

ECKHOFF N.O.

5th Respondent

DEON

MARIUS BOTHA N.O

6th Respondent

JOHANNES ZACHARIAS HUMAN MULLER N.O. 7th Respondent

REFILWE

TLHABANYANE N.O 8th Respondent

VIMBI ANGELA TSOPOTSA N.O.

9th Respondent

ANGELINE POOLE N.O.

10th Respondent

PHILEMON MAWIRE N.O.

11th Respondent

AGRI

SOUTH AFRICA NPC 12th Respondent

MASTER OF THE HIGH COURT, KIMBERLEY

13th Respondent

MASTER OF THE HIGH COURT, CAPE TOWN

14th Respondent

AFFECTED PARTIES OF PROJECT MULTIPLY (PTY) LTD 15th Respondent

AFFECTED PARTIES OF VELVETCREAM 15 (PTY) LTD

16th Respondent

AFFECTED PARTIES OF THE MERWEDE TRUST AS PER 17th Respondent

AFFECTED

PARTIES OF CAREL ARON VAN DER MERWE

18th Respondent

NATIONAL

REAL

ESTATE

19TH Respondent

PIETER

BURGER

20th Respondent

PIET

STEENKAMP

21St Respondent

NARDUS

SCHEEPERS

22ND Respondent

IN RE:

CASE NO: 963/2021

OF

SOUTH

AFRICA

Applicant

JACQUES DU TOIT N.O.

1st Respondent

PROJECT MULTIPLY (PTY) LIMITED

2nd Respondent

COMMISSION (CIPC)

3rd Respondent

ALL

AFFECTED PARTIES

4th Respondent

AND

CASE NO: 964/2021

THE

LAND AND AGRICULTURAL DEVELOPMENT BANK Applicant

OF

SOUTH AFRICA

JACQUES DU TOIT N.O.

1st Respondent

VELVET CREAM 15 (PTY) LTD (In Liquidation)

2nd Respondent

THE

COMPANIES AND INTELLECTUAL PROPERTY

MAHIKENG CASE NUMBER: N557/2021

KIMBERLEY CASE NUMBER: 2436/2021

THE

LAND AND AGRICULTURAL DEVELOPMENT

Applicant

BANK

OF SOUTH AFRICA

CAREL ARON VAN DER MERWE (SNR) N.O

1st Respondent

CATHARINA SUSANNA VAN DER MERWE N.O 2nd Respondent

CAREL ARON VAN DER MERWE (JNR)

3rd Respondent

CORAM: WILLIAMS J:

JUDGMENT

WILLIAMS J:

1. This is an application for leave to appeal against the judgment and order of 1 December 2023 in which I dismissed the applicants’ application to interdict the liquidation and sequestration proceedings against Project Multiply 9Pty) Ltd (in liquidation), Velvet Cream 15 (Pty) Ltd (in liquidation) and the Merwede Trust, pending an application for the rescission of the liquidation and sequestration orders.

2. Various grounds of appeal have been raised which in the main can be summarized as follows:

2.1 That I erred in finding that the applicants lacked locus standi to bring the application; and

2.2 That my finding as to the validity of the cession of rights by Unigro to Land Bank is in conflict with two other judgments.

Locus standi of the applicants

3. I have found that the applicants have failed to prove claims as creditors and by inference failed to establish locus standi as creditors. The liquidators in their answering affidavit have however not specifically denied that the applicants are creditors of the insolvent companies and as such a court of appeal could reasonably find that the applicants have established locus standi as creditors.

4. As far as the 1st applicant’s locus standi as a result of alleged directorship of the insolvent companies is concerned, Mr Maritz SC who appeared with Mr Janse Van Rensburg for the applicants, argued that if directors of a company can appeal on behalf of the company against a winding-up order (see O’ Connell Manthe & Partners v Vryheid Minerale 1979 (1) SA 553 (TPD) ), there could be no bar against directors bringing an application for the rescission of a winding-up order. The difficulty with this argument, besides the fact that the allegation of directorship was not made in the founding affidavit, is that such an application should be mounted by the company at the instance of its board, not as single director (O’Connell Manthe supra at 557 H). There is no merit in the argument that the 1st applicant’s directorship of the insolvent companies clothes her with the necessary locus standi.

Validity of the cession of rights

5. I have found in paragraph 14 and 15 of the main judgment that the suite of agreements entered into between Unigro and Land Bank and the confirmation by the officials of Land Bank and Unigro of the transfer of rights, title and interest of Unigro to Land Bank of the loan agreements entered into between Unigro and the insolvent entities were admissible and sufficient to establish a valid cession of such rights to Land Bank.

6. In Trakman N.O and Others v The Master of the High Court of South Africa and Others 2020/12432 [2012] ZAGP JHC 168, where Land Bank relied for its locus standi on a similar suite of agreements and confirmation or recordal thereof, the Court rejected this argument and held at paragraph 43

thereof that:

“For reasons already provided, the mere ipse dixit of Land Bank and Grocap is insufficient to establish Land Bank’s locus standi as creditor or the sale of the Trademark debt to Land Bank. A proper consideration of all the underpinning agreements is required to clarify what the agreements achieved, rather than simply accepting what the parties thought they achieved.”

7. It is clear that my judgment in this regard is in direct contradiction to the judgment in Trakman. In Waldeck NO and Others v Land and Agricultural Development Bank of South Africa, Mpumalanga Division, Middelburg, 4013/18, Land Bank failed to discover in terms of Rule 35(12) certain documents underpinning an alleged cession of rights on the basis of confidentiality and sought to rely solely on a recordal or confirmation between inter alia Unigro and Land Bank as proof of the existence of a cession and the validity thereof. The Court held inter alia that “The recordal is no proof of the fact that valid cessions were entered into between Unigro (the applicant’s initial creditor) and the respondent” (at paragraph 26).

8. It is in the public interest that legal certainty be obtained in circumstances where conflicting judgments exist. Leave to appeal should be granted on this basis as well.

In the circumstances the following orders are made:

a) Leave to appeal to the Supreme Court of Appeal is granted.

b) The costs of this application are to be costs in the appeal.

C C WILLIAMS

JUDGE

For Applicants: Adv. NGD Maritz SC with Adv FG Janse Van Rensburg Schutte Attorneys c/o Haarhoffs Inc For 1st Respondent: Adv. J G Cilliers SC Strydom & Bredendamp Inc c/o Van de Wall Inc For 5th to 11th Respondents: Adv HR Fourie SC J L Van Niekerk Inc c/o Majiedt Swart Attorneys Inc