Trustees for the time being of the Willem Martin van der Westhuizen Testamentary Trust and Another v Absa Bank Limited (CIVAPP454/13) [2017] ZANWHC 35 (22 June 2017)

IN THE NORTH WEST HIGH COURT

MAHIKENG

CIV APP 454/13

In the matter between:

THE TRUSTEES FOR THE TIME BEING OF THE 1st Applicant

THE WILLEM MARTIN VAN DER WESTHUIZEN

TESTAMENTARY TRUST

BEING CORNELIUS VAN DER WESTHUIZEN N.O.

CORNELIUS VAN DER WESTHUIZEN 2nd Applicant

And

ABSA BANK LIMITED Respondent

CIVIL MATTER

DATE OF HEARING : 23 FEBRUARY 2017

DATE OF JUDGMENT : 23 FEBRUARY 2017

DATE REASONS HANDED : 22 JUNE 2017

FOR THE APPLICANT : Adv. W. Wannenburg

FOR THE RESPONDENT : Adv. J.G. Bergenthuin SC

REASONS FOR JUDGMENT

KGOELE J:

[1] This matter served before me on the 23 February 2017 as a semi- urgent application wherein the following relief were sought:-

1.1 Dispensing with the forms and services provided for in the Uniform rules and disposing of this matter as one of urgency in terms of Uniform Rule 6(12).

1.2 The writ of execution for the sale of the immovable property described as portion 5 of the Farm Du Toits Pan, 473, Registration Division J.P. North West Province (hereinafter referred to as “the property is set aside, alternatively is stayed pending finalisation of the appeal under case number:6/2016 (the “appeal”).

1.3 The sale in execution of the property scheduled for 24 February 2017 is set aside, alternatively is stayed, further alternatively is cancelled pending finalisation of the appeal.

1.4 The respondent is interdicted and restraint from selling or purporting to sell the property pending finalisation of the appeal.

1.5 Insofar it is necessary, the appeal is/ be reinstated.

1.6 It is ordered that the record of the proceedings in the Court a quo under case number: 454/2013 shall be reconstructed.

1.7 Direction is provided by this Court as to the matter in which the record of the proceedings in the trial court, under case number: 454/2013, be reconstructed.

1.8 The Honourable Madam Justice Djadje, Digital Audio Recording Transcriptions, and all interested parties are hereby directed to assist in the reconstruction of the record within ninety (90) days from the date of this order and within a further sixty (60) days thereafter the appeal must be placed on the roll of this division with the record fully paginated and heads of argument filed.

1.9 The legal representative of the first and second applicants and the legal representatives of the respondent is directed come together, bringing and exchanging their extant notes and such other documentation as may be relevant.

1.10 The aforesaid parties are directed to endeavour, to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow.

1.11 This reconstructed record shall then be placed before the relevant court with such reservations as the participants may wish to note.

1.12 Whether the product of their endeavour is adequate for the purpose of the appeal is for the court hearing same to decide, after listening to argument in the event of a dispute as to the accuracy or completeness of the reconstructed record.

1.13 The respondent is ordered to pay the costs of this application.

1.14 Granting the first and second applicants further and/or alternative relief.

[2] After hearing arguments the following order was granted:-

“1. THAT: Dispensing with the forms and services provided for in the Uniform Rules and disposing of this matter as one of urgency in terms of Uniform Rule 6(12)

2. THAT: The Writ of Execution for the sale of the immovable property described as Portion 5 of the Farm Du Toits Pan, 473, Registration Division J.P North West Province (hereinafter referred to as “the property is stayed pending finalisation of the appeal under Case Number 6/2016 (the “appeal”).

3. THAT: The sale in execution of the property scheduled for the 24th day of FEBRUARY 2017 is stayed, pending finalisation of the appeal.

4. THAT: The Respondent be and is hereby interdicted and restraint from selling or purporting to sell the property pending finalisation of the appeal.

5. THAT: The appeal be and is hereby reinstated.

6. THAT: The record of the proceedings in the Court a quo under Case number 454/2013 shall be reconstructed.

7. THAT: The direction be and is hereby provided by this Court as to the manner in which the record of the proceedings in the trial court, under case number 454/2013, is to be reconstructed.

7.1 The Applicant /Appellant be and is hereby directed to take steps within 15 days from date of this order to Initiate the reconstruction of the record with Madam Justice DJAJE AJ and all parties involved and interested.

7.2 The Honourable Madam J0ustice DJAJE AJ, Digital Audio Recording Transcriptions, and all interested parties are hereby directed to assist in the reconstruction of the record within ninety (90) days from the date of this order and within a further sixty (60|) days thereafter the appeal must be placed on the Roll of this Division with the record fully paginated and Heads of Argument filed.

7.3 The legal representative of the First and Second Applicants and the Legal representatives of the Respondent be and are hereby directed to come together, bringing and exchanging their extant notes and such other documentation as may be relevant.

7.4 The aforesaid parties be and are hereby directed to endeavour, to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow.

7.5 This reconstructed record shall then be placed before the relevant Court with such reservations as the participants may wish to note.

7.6 Whether the product of their endeavour is adequate for the purpose of the appeal is for the Court hearing same to decide, after listening to argument in the event of a dispute as to the accuracy or completeness of the reconstructed record.

8. THAT: Each party pay their own costs.”

[3] On the 1st of March 2017 the respondent requested written reasons in terms of Rule 49 (1) (c) of the Uniform Rules of Court, and the reasons for the said order follows hereunder.

[4] This matter is not without a long history. The applicant launched this application in both his personal capacity (second applicant) and his official capacity (first applicant) as the only trustee for the time being of the Willem van der Westhuizen Testamentory Trust, (The Trust). He was also the first and second defendant in the trial in the Court a quo under case number 454/2013 and is also the first and second appellant in the pending Civil Appeal under case number 6/2016 respectively.

[5] The respondent is ABSA Bank, a public company duly registered and incorporated in terms of the laws of the Republic. The respondent was also the plaintiff in the Court a quo and furthermore, is the respondent in the pending Civil Appeal. For the sake of convenience I shall refer to the parties as they are referred to in this application that is, applicants and respondent respectively.

[6] The trial in the main action under case number 454/2013 proceeded before Djaje AJ. After all the evidence was presented, Djaje AJ, granted an order on the 12 March 2015 in favour of the respondent and against the applicants.

[7] On 4 September 2015 Djaje AJ, after considering arguments, granted the applicants leave to appeal the whole of her judgment to the Full Bench of this Court. On 29 September 2015 the applicants, timeously filed a notice of Appeal within the 20 days prescribed by Uniform Rule 49 (2).

[8] After the notice of Appeal was filed, the applicants endeavoured to have the record transcribed but encountered some difficulties.

Only a partial record was prepared by the transcribers. The respondent proceeded to set the Appeal down for hearing and served a notice of set down on 27 July 2016. The Appeal was enrolled for hearing on the 9 September 2016.

[9] In the meantime the respondent raised as an issue the fact that the Appeal had lapsed. The applicants then applied for the reinstatement

of the Appeal to be heard on the same day allocated for the hearing of the Appeal. At the hearing it became common cause that the

applicants had only filed a partial record prepared by the transcribers.

[10] After hearing arguments for and against the re-instatement of the Appeal the following Order was then made by the Appeal Court;

1 within 60 days after the order, in terms of Rule 49(6)(a), the appellant had to make a written application to the Registrar for a date for the hearing of the appeal and at the same time the appellants had to, in terms of Rule 49(7)(a) file with the registrar 3 copies of the complete record of appeal and furnish 2 copies to the respondent.

2 the Registrar must further within the time stated be provided with a complete index and copies of all papers, documents and exhibits in the case, except formal and immaterial documents;

3 the appellants would in terms of Rule 48(13) before lodging copies of the record of appeal with the Registrar, enter into good and sufficient security for the respondent’s cost of appeal.

[11] From the correspondence between the parties it appears that on 8 December 2016 the applicants were made aware once again, that the Appeal has lapsed and that the respondent was proceeding to liquidate the property which served as security for a judgment debt (the execution process). It also appears that it was pointed out to the applicants that the sale in execution was scheduled for the 24 February 2017.

[12] The applicants then brought this application on a semi-urgent basis contending that they only ascertained on the 13 February 2017 that a sale in execution was scheduled for the 24 February 2017 as no notice of the sale was served upon them. The applicants further contended that this application is semi-urgent because they prepared these papers at the first available opportunity immediately after the respondent’s letter of 14 February 2017 which confirmed that a sale in execution would take place was received.

[13] The applicants further submitted that although the respondent’s attorneys wrote in a letter dated 31 January 2017 that a sale in execution would take place on 24 February 2017, they did not think much of this and thought it was further bullying tactics employed by the respondent because they did not sign the power of attorney documents or settle with the respondent as the respondent requested.

[14] The applicants further contend that even if an application was brought on 1 February 2017 in the ordinary course, the matter would still not have been heard before 24 February 2017. The consequences should the property be sold in execution and they ultimately becoming successful in the pending Appeal is irreversible in that the property would have been sold.

[15] The second applicant in particular contends that the Appeal is extremely important to him because he is a farmer conducting business from and at the property concerned. According to him his entire livelihood including his family depends on the property concerned.

[16] It is the second applicant’s further argument that despite everyone’s best endeavours, the complete record could not be transcribed. This, according to second applicant, can be seen from a series of correspondences his attorney wrote throughout from the 9th of September 2016, wherein he attempted to obtain the said entire record transcribed.

[17] The second applicant contends further that Mr Stanton of Smit Stanton Inc, being the correspondent attorneys, in a confirmatory affidavit also confirms that he has repeatedly approached the Registrar and Digital Audio Transcriptions to have the full record

transcribed. He also confirms that he took a letter to the Honourable Judge Gura, who was the Senior Judge in the Appeal Court, to obtain directions concerning the reconstruction of the record. After this, he also on a few occasions followed this up with a visit to the Honourable Judge’s office to find out if any answer was available.

[18] The other leg that the applicants rely on in this application is to the effect that the Appeal Court order of 9 September 2016 provides, amongst others that:-

18.1 Within 60 days after the order they had to make a written application to the registrar of the above Court for a date of the hearing of the appeal, and

18.2 at the same time file 3 copies of the complete record of appeal.

According to the applicants, the manner in which the order was phrased, added more problems to them as it was not possible for them to simultaneously apply for a date and file the transcribed record because it was still not complete. On the other hand, so they say, the respondent has adopted the approach that it is not their problem that the record be transcribed.

[19] The applicants maintain that it was only towards the end of 2016 that it was ascertained, for the first time, that the other part of recording could not be found at all. This they argued, placed a complete different approach to this matter.

[20] The applicants placed much reliance on the case of Toyota SA Motors (Pty) Limited v Commission for Conciliation, Mediation and Arbitration 2015 JDR 2693 (CC) wherein the Constitutional Court referred to the case of Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Center v CCMA and Others [2003] ZALAC 3: [2003] 5 BLLR 416 (LAC) (Lifecare) (per Comrie AJA) with the concurrence of Zondo JP (as he then was) and Jappie AJA) said the following concerning the reconstruction of a record:

“A reconstruction of a record (or part thereof) is usually undertaken in the following way. The tribunal (in this case the commissioner) and the representatives … come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour, to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant court with such reservations as the participants may wish to note. Whether the product of their endeavour is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of a dispute as to the accuracy or completeness.

…

When it appeared that there were difficulties with regard to the record, it was the obligation of Lifecare, as the reviewing party, to initiate the enquiries and steps which have been set forth in this judgment. It should not have been left to the Labour Court at first instance, and to this Court on appeal, to resolve problems which were other than residual or intractable.”

[21] The respondent’s opposition is basically that the applicants are delaying finalisation of the matter and further that there is no pending Appeal as the Appeal has once again lapsed. Respondent further submitted that there is no urgency in this matter as it is self-created, and lastly, that the applicants do not approach the Court in clean hands as they did not comply with the Order of the Appeal Court.

[22] To substantiate their submissions the respondent contends that the applicants admitted in the founding affidavit (paragraph 74.2) that they were already on 22 October 2016 informed that the Court record was not traceable. This fact is further echoed in annexure “Y” to the founding affidavit. The averment in paragraph 101 of their founding affidavit that it was only towards the end of 2016 that it was ascertained that the recording could not be found, should be understood to mean that it was on 22 October 2016 when it was so ascertained.

[23] The respondent submitted further that on 31 January 2017, as appears from annexure “CC”, it was pertinently pointed out to the applicants that the sale in execution was scheduled for 24 February 2017. Applicants’ averment that they “did not think much” of the execution to take place on 24 February 2017, cannot be taken seriously because the attorneys of the applicants were informed accordingly.

[24] The respondent submitted further that in view of the afore-going, there is no reason in law why the Sheriff cannot proceed with the sale in execution on 24 February 2017 as the application is not urgent. The applicants have outplayed their chances to be heard on Appeal. They were fully aware of what was required of them, and they simply did not comply with the Court Order. The simple truth according to the respondent is that there is no pending Appeal, and there can be no question that life can be blown in the Appeal after the many delays which were caused by the applicants. In addition, there is no prospect of success in the pending Appeal.

[25] It is clear that the urgency of this matter revolves mainly around the fact that a sale in execution of the property of the applicants is to take place on the 24 February 2017 instant. On this issue the respondent contends that if there is any urgency, it is self-created. In the main the respondent submitted that the step the applicants are afraid of is a step that relates to the sale in execution, which obviously has to be followed by the property being transferred to a third party only upon registration of which registration thereof cannot take place tomorrow. They contend that on this point alone the matter can be struck off the roll.

[26] Although what the respondent contend above is true that it is only the sale in execution that will take place on the 24th instant, it is further true that once the sale in execution had taken place it cannot be simply cancelled or set aside except by an order of Court. It is not surprising that the applicants labour under a fear that once the sale in execution is left to proceed, the Appeal that is allegedly pending will be a futile exercise.

[27] It is trite law that there are various degrees of urgency. It is quite clear that the applicants were alive to this fact that is why they brought this matter to be heard on a semi-urgent basis which is on the first available motion Court day in this Division and had regard to the necessity of filing of papers by both parties with the Registrar.

[28] Frequently in matters of this nature, the subject matter of the dispute is of great importance to the parties. In this matter, this is common cause between the parties. The applicants’ Appeal is of great importance to them and on the other hand the judgement that was granted in favour of the respondent is of great importance to them as well. This matter is a classic example where the Court cannot just sit back and allow matters to develop without coming in. This could result in irreparable harm to one of the parties, especially the applicants.

[29] I am saying this because even though the facts of this case clearly demonstrates that the applicants had since December 2016 been aware of the impending sale, which might amount to self-created urgency on their part, there are exceptional circumstances that justify the granting of an urgent relief. This decision was obviously taken when one considers the difficulties the applicants encountered in regard to obtaining a complete record and the adjudication of their Appeal. It therefore becomes apparent that urgency cannot be considered without touching on the merits of this application.

[30] Although there appears to be some degree of laxity on the part of the applicants, the failure to file a complete record is not wholly occasioned by them. From the explanation given by them, it shows that they were trying to do something although it appears that at some of the times they did not opt for the best method of securing the complete record e.g. writing to Gura J and waiting for his response rather than having made an application like they did now.

[31] It is significant to note that the fact that a complete transcribed record cannot be obtained is common cause between the parties. What is also common cause is the fact that this fact came to the applicant’s knowledge after the Appeal Court issued a reinstatement of the Appeal. The Appeal Court Order also had some conditions imposed on the applicants as they submitted above and to a greater extent, the said conditions as imposed by the Appeal Court also created some difficulty to the applicants as they contended above.

[32] I fully agree that the applicants did not wilfully fail to comply with the Appeal Court Order. This is so because the Court Order stipulated that when they make an application for a date to the registrar, they must at the same time or simultaneously file 3 copies of the complete record of the Appeal. The latter part has been proven to be difficult to the applicants up to this date. This also serves as one of the reasons why this Court ordered the reinstatement of the Appeal. In my view, it will be nonsensical to apply for a date of the Appeal if the entire record has not been transcribed / reconstructed and the proper way of doing it is as it was pronounced by the Constitutional Court in the case of Toyota SA Motors the applicants quoted above. I may pause here to mention that in as far as this submission made by the applicants relating to the difficulty in complying with the order, the respondent is noticeably silent and did not proffer any reply thereto.

[33] In my view, the circumstances of this matter calls for this Court to intervene in order to assist the parties on a purely interim basis, as it is shown that this is necessary. I may emphasize the fact that refusing urgent relief when such is justified causes just as much, if not more harm, than allowing the matter to be heard as one of urgency, if there is no real justification therefor. In my view, the Order I gave on the 23 February 2017 was what was just in the circumstances of this matter. Furthermore, the applicants also managed to demonstrate and satisfy why they contend that they will not be offered substantial redress at a hearing in due course, as the only way is to apply to the Court for the reconstruction of the record to be done. In my view the applicants managed to make out a case for the reliefs that I granted.

[34] There were several other irregularities claimed by the applicants in support of their prayers sought with the aim to set aside the writ and the sale in execution scheduled for the 24 February 2017. I declined to analyse these averments and submissions made thereto solely for the reason that the arguments that I dealt with above could on its own, disposes the matter, hence the order that I made was for the staying of the writ of sale in execution pending finalisation of the Appeal.

[35] The above sums up the reasons for the order I granted.

________________

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT : David Mey & Partners Incorporated

C/O Smit Stanton Inc

29 Warren Street

2745

FOR THE RESPONDENT: Van Zyl Le Roux Incorporated

C/O Labuschagne Attorneys

19 Constantia Drive

Riviera Park