Van den Heever v VKB Landbou (Pty) Ltd (1356/2024) [2025] ZAFSHC 52 (18 February 2025)
- Citation
- [2025] ZAFSHC 52
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- JP Daffue
- Case number
- 1356/2024
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- JP Daffue
- Case number
- 1356/2024
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application for leave to appeal was dismissed because the applicant failed to raise the alleged unlawfulness of the credit agreements and supplementary documents in his answering affidavit or during argument. No factual basis was laid for these defences, and the only reference to unlawfulness was a passing mention in counsel's heads of argument. The court found that none of the agreements relied upon by VKB excluded the National Credit Act or were entered into contrary to its provisions. The Notarial Bond was not supplementary to any credit agreement and dealt only with security. The facts of the cited cases were distinguishable, and the Supreme Court of Appeal had resolved any conflicting judgments. The court was satisfied that no other court would reach a different conclusion and that the applicant had not made out a case for leave to appeal.
Court disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
02
Material facts
Parties
Johannes Stephanus van den Heever
Applicant Counsel: Adv R van der MerweVKB Landbou (Pty) Ltd
Respondent Counsel: Adv JJ PretoriusAmounts and remedies
- Principal Debt Awarded in Original Judgment: ZAR 1,350,220.2
03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits
04
Questions and positions
Legal issues
- 01
Whether the credit agreements and acknowledgements of debt are unlawful and void under the National Credit Act.
- 02
Whether conflicting judgments justify leave to appeal.
- 03
Whether the court failed to make findings on non-compliance with sections 89 to 92 of the National Credit Act.
- 04
Whether VKB unlawfully levied interest, fees, and charges.
- 05
Whether the credit agreements fall foul of sections 90(2)(a) and (b) and section 3 of the National Credit Act.
- 06
Whether supplementary agreements are unlawful under the National Credit Act.
Party arguments
- Applicant
- The applicant contended that the credit agreements and acknowledgements of debt are unlawful and void as they contain clauses prohibited by the National Credit Act (NCA). He argued that there are conflicting judgments on the matter, specifically referencing Serfontein v ABSA Bank Ltd and Standard Bank v Wolmarans NO, which constitute compelling reasons for leave to appeal. He further alleged that the court failed to make findings on non-compliance with sections 89 to 92 of the NCA, that VKB unlawfully levied interest, fees, and charges, and that the credit agreements and supplementary agreements are unlawful under the NCA.
- Respondent
- The respondent maintained that the applicant did not raise the alleged unlawfulness of the agreements in his answering affidavit or during argument, and no factual basis was laid for these defences. The respondent argued that the agreements relied upon do not exclude the NCA nor contravene its provisions. The Notarial Bond is not supplementary to any credit agreement and deals only with security. The respondent asserted that the facts in Serfontein are distinguishable and that no other court would reach a different conclusion.
05
Court’s reasoning
Legal principles
- 01
Standard Bank of South Africa Ltd v Wolmarans NO and Others (3949/2021) [2022] ZAFSHC 118
A party may not rely on grounds not raised in the pleadings or argument; failure to lay a factual basis for new defences is fatal to an application for leave to appeal.
- 02
National Credit Act 34 of 2005
Credit agreements must comply with the National Credit Act; agreements that contravene the Act may be void, but only if the relevant defences are properly raised and supported by facts.
- 03
Serfontein and Another v ABSA Bank Ltd and Others 2023 (5) SA 579 (FB); Absa Bank Limited v Johan Serfontein and Another (740/2023) [2024] ZASCA 11
The existence of conflicting judgments may constitute compelling reasons for granting leave to appeal, but only if such conflict persists and is material to the case.
06
Ratio, limits and disposition
Ratio decidendi
The application for leave to appeal was dismissed because the applicant failed to raise the alleged unlawfulness of the credit agreements and supplementary documents in his answering affidavit or during argument. No factual basis was laid for these defences, and the only reference to unlawfulness was a passing mention in counsel's heads of argument. The court found that none of the agreements relied upon by VKB excluded the National Credit Act or were entered into contrary to its provisions. The Notarial Bond was not supplementary to any credit agreement and dealt only with security. The facts of the cited cases were distinguishable, and the Supreme Court of Appeal had resolved any conflicting judgments. The court was satisfied that no other court would reach a different conclusion and that the applicant had not made out a case for leave to appeal.
Obiter and limits
- The Notarial Bond is not in conflict with the National Credit Act and its validity was never in issue.
- There cannot be any argument about an unlawful parate executie in this matter.
- The facts in Serfontein are totally distinguishable from the facts in casu; Van den Heever was not required or induced to sign any supplementary agreements as was the case in Serfontein.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of interest to other Judges: NO
Circulate to Magistrates: NO
Case no: 1356/2024
In the application for leave to appeal:
JOHANNES
STEPHANUS VAN DEN HEEVER Applicant (ID-Number: 8[…]) And VKB LANDBOU (PTY) LTD Respondent (Registration number: 2015/[…]) In re: VKB LANDBOU (PTY) LTD Applicant (Registration number: 2015/[…]) And
JOHANNES
STEPHANUS VAN DEN HEEVER Respondent (ID-Number: 8[…])
Coram:
JP DAFFUE J
Heard:
18 FEBRUARY 2025
Delivered:
18 FEBRUARY 2025
This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 13H00 on 18 FEBRUARY 2025.
ORDER
1. The application for leave to appeal is dismissed with costs.
JUDGMENT
Daffue J
[1] On 28 November 2024 I granted an order in favour of the applicant, VKB Landbou (Pty) Ltd (VKB) for payment of the amount of R1 350 220.20 plus interest and a further order for the perfection of a Notarial Bond with leave to VKB to sell the movable assets in terms thereof by public auction.
[2] This is an application by the unsuccessful respondent, Johannes Stephanus van den Heever (Van den Heever) for leave to appeal to the Supreme Court of Appeal, alternatively the full bench of this division.
[3] In this application Van den Heever relies on the following grounds:
3.1 the Credit Agreements and Acknowledgements of Debt (AOD’s) are unlawful and void as containing clauses prohibited by the NCA;
3.2 there are two conflicting judgments in this regard, to wit Serfontein and Another v ABSA Bank Ltd and Others[1] (Serfontein) and Standard Bank of South Africa Ltd v Wolmarans NO and Others[2], constituting compelling reasons why leave to appeal should be granted;
3.3 I failed to make any findings on the non-compliance with ss 89 to 92 of the National Credit Act 34 of 2005 (NCA);
3.4 I failed to find that VKB had unlawfully levied interest, fees and charges with specific reference to Annexure VKB2;
3.5 I erred in rejecting his version on the papers;
3.6 I failed to find that the credit agreements (AR3; VKB6; VKB7; VKB8; and VKB9) are unlawful in falling foul of ss 90(2)(a) and (b) and s 3 of the NCA; and
3.7 I failed to find that Annexures VKB10 (Perfection Agreement); VKB10.1 (Written Undertaking); VKB11 (Memorandum of Agreement); and VKB12 (AOD) constituted unlawful supplementary agreements in terms of the NCA.
[4] Van den Heever’s counsel stated during oral argument that leave should be granted to the full bench of this division, bearing in mind that the Supreme Court of Appeal had upheld Van Zyl J’s judgment in Serfontein. He also accepted that as a result of that judgment, there are no conflicting judgments anymore and thus no compelling reasons why leave to appeal should be granted.
[5] It should be mentioned that, far from what is now alleged by Van den Heever as grounds of appeal, he raised the following defences in his answering affidavit, which is also evident from the written heads of argument by his counsel. I summarise these:
a. a deficiency in the application for membership;
b. the cession between VKB as cessionary and the cedent, i.e. the locus standi of VKB was placed in dispute;
c. what VKB’s claims really consist of;
d. VKB’s attempts to enforce its rights in terms of the cession;
e. VKB’s claim is not liquidated;
f. there is a factual dispute.
[6] The alleged unlawfulness of the source documents relied upon by VKB due to non-compliance with the NCA was neither raised in the answering affidavit, nor argued before me. No factual basis was laid for these defences now relied upon. Such failure should be fatal for the application for leave to appeal. The parties did not canvass these, either in their affidavits, or in argument. The only reference to unlawfulness or voidness is found in paragraph 66 of Van den Heever’s counsel’s heads of argument. It was mentioned, but not even argued in court that the ‘purported entitlement to sell [Van Der Heever’s] corporeal movable assets’ would ‘constitute an unenforceable agreement which is void ab initio for want of compliance with the peremptory provisions of the National Credit Act, 34 of 2005’. I specifically did not make any order in respect of the Perfection Agreement attached to the founding affidavit, but in terms of the Notarial Bond attached as Annexure VKB4 to the founding affidavit.
[7] I adjudicated the Wolmarans case[3] referred to in the application for leave to appeal. That matter has been argued in the Supreme Court of Appeal, but judgment was reserved. In any event, the facts in that case are not on par with the facts in casu.
[8] Van den Heever’s counsel relies on the judgment by Van Zyl J in Serfontein which was upheld by the Supreme Court of Appeal in Absa Bank Limited v Johan Serfontein and Another.[4] The facts in Serfontein are totally distinguishable from the facts in casu. Van den Heever was not required or induced to sign any supplementary agreements as was the case in Serfontein. As mentioned, similar defences were not raised before me and I was not called upon to decide these issues. In any event, I am satisfied that no agreements relied upon by VKB, and on which I came to my conclusion, excluded the NCA specifically and/or were entered into contrary to any of the provisions of the NCA. Neither the Written Undertaking of 27 October 2021, nor the AOD of March 2023 were ever argued to fall foul of the NCA. The same applies to the 2017 Credit Agreement, the Standard Agreement and the Facility Letter of 16 April 2021. I am satisfied that no other court will come to a different conclusion.
[9] The Notarial Bond, Annexure VKB4, is also clearly not in conflict with the NCA. This Notarial Bond is not supplementary to any credit agreement and does not deal with the same subject matter. It deals with security. The validity of the Notarial Bond was never an issue. Also, there cannot be any argument about an unlawful parate executie.
[10] I am satisfied that Van den Heever has not made out a case to be granted leave to appeal.
[11] The following order is made:
1. The application for leave to appeal is dismissed with costs.
JP
DAFFUE J
Appearances For applicant: Adv R van der Merwe Instructed by: Honey Attorneys Bloemfontein. For respondent: Adv JJ Pretorius Instructed by: Gerrit Coetzee Attorneys Inc c/o Muller Gonsior Inc Bloemfontein.
[1] 2023 (5) SA 579 (FB).
[2] (3949/2021) [2022] ZAFSHC 118 (16 May 2022).
[3] Standard Bank of South Africa Ltd v Wolmarans NO and Others (3949/2021) [2022] ZAFSHC 118 (16 May 2022).
[4] (740/2023) [2024] ZASCA 11 (10 February 2025).
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