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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 

                                                                                                CASE NO: UM211/2023

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:

 

THE LAND & AGRICULTURAL DEVELOPMENT                   Applicant

BANK OF SOUTH AFRICA

 

AND

 

JOHANNES RUDOLF NAGEL N.O.                                        1^ST Respondent

 

ANNE-MARIE NAGEL N.O.                                                     2^ND Respondent

 

Heard:           11 NOVEMBER 2024

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 24 JANUARY 2025.

ORDER

 

The following order is made:

 

1.    The rule nisi granted on 16 November 2023 is hereby confirmed.

 

2.    The JR Family Trust IT 189/99 is finally sequestrated.

 

3.    The costs of this application are costs in the sequestration of the JR Family Trust IT 189/99.

 

 

JUDGMENT

DJAJE DJP

 

[1]        This is an application for the final sequestration of the JR Family Trust (IT No. 189/99). The provisional order was granted on 16 November 2023 and now the applicant seeks a relief for final sequestration.

 

[2]        It is the applicant’s case that the Trust is indebted to it in the amount of R25 628 50.49 and that resulted in a default judgment being granted on 30 January 2020 for payment in that amount together with interest. There was a rescission application by the Trust which was subsequently dismissed. There is no appeal process pending, however the Trust is opposing the granting of a final sequestration order on the basis that there is a fresh application for rescission of the judgment to be launched in future. Currently there is no rescission application pending or launched.

     

[3]        The applicant argued that the respondents’ ground of opposition is baseless as the judgment of 30 January 2020 stands until set aside. Currently the applicant has not been served with any proceedings to set aside the default judgment. The submission by the applicant was that the judgment is binding and enforceable. It was argued that the intended grounds for rescission are not relevant at this stage and should not be a consideration for discharge of the provisional order for sequestration.

 

[4]        In contention the respondents do not dispute the default judgment in the amount of R25 628 590.49 and that the application for rescission has been dismissed. It was further conceded that all appeal processes were unsuccessful including an order from the Constitutional Court that the application for condonation and leave to appeal cannot be considered under the circumstances where the delay was excessive, and the explanation was inadequate. The grounds of opposition are based on the intended application for rescission that the Court a quo would not have granted the default judgment in favour of the applicant had it been aware of the facts pertaining to the applicant’s lack of locus standi.

 

[5]        It is so that the rescission application is not before this court however, the respondents argued in support of the discharge of the provisional order that the applicant failed to establish locus standi when the default judgment was granted. It was argued that the applicant relied on agreements without placing the relevant documents before Court and refused to disclose those documents to the debtors and the Court. In support of its argument the respondents relied on the judgements of Waldeck N.O. & Others v The Land and Agricultural Development Bank of South Africa case number 4013/2018 Mpumalanga Division where the court held that the Land Bank will have to produce the documents relied on for cession to prove their locus standi.

 

[6]        Previously the respondents brought an application for rescission of the default judgment and the issue of locus standi was raised and the court adequately dealt with it as follows by Makoti AJ at par 6 and 24:

 

            “The Bank averred that during or about 26 August 2013 it purchased all of Suidwes’ debt book. Upon reaching the sale agreement, and this could not be gainsaid on any rational basis by the applicants, Suidwes then ceded to the Bank all the right to collect or recover debts owed to it (Suidwes). It was on the ground of being a cessionary that the Bank established the locus standi and instituted the Court proceedings against the applicants, having ostensibly become their new creditor.

 

            The applicants also raised an argument, a technical defense that was to the effect that the Bank did not have the requisite locus standi to institute the claim against them. This contention falters in that I have already indicated that the Bank’s claim is predicated on a cession agreement with Suidwes. But if that was not sufficient, the alleged relationship between the Bank and Suidwes is further evinced in a power of attorney dated 13 December 2013, which authorised the officials concerned to initiate the litigation.”

 

[7]        It is clear from the above that the question of locus standi was raised and dealt with in the rescission application. The respondents now argued that the legal basis for the fresh intended rescission application is that the Court would not have granted the judgment as it did, had it known the true facts. The said application is not before this Court and it is therefore not clear what new allegations are made in relation to the question of locus standi.

 

[8]        The respondents seem to be playing delaying tactics in raising the issue of locus standi as a ground for rescission when it was previously dealt with. This matter has a long history and must at some point come to an end. In its heads of argument counsel for the applicant correctly quoted from the Constitutional Court judgment of Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others [2021] ZACC 28 that “ Like all things in life , like the best of times and the worst of times, litigation must, at some point , come to an end.”

 

[9]        The Trust was placed under provisional sequestration because of a default judgment granted for its indebtedness to the applicant. The judgment has not been rescinded and it stands until set aside. Section 165(5) of the Constitution of the Republic of South Africa Act 108 of 1996 provides that “An order or decision issued by a court binds all persons to whom and organs of state to which it applies”

 

[10]      In addition the judgment against the Trust has legal consequences that can be enforced until set aside by a competent court. See: Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) at par 182.

 

[11]      In this application for a final order the respondents have not raised any defence to have the provisional order discharged. The applicant complied with all the statutory requirements for a final order to be granted. The provisional order was advertised in the Government Gazette of 8 December 2023. It was served personally on the respondents in their capacity as trustees and on the South African Revenue Services. The order was also published in the Beeld and Sunday Times newspapers. I see no reason why the rule nisi granted on 16 November 2023 should not be confirmed.

 

Order

 

[12]      Consequently, the following order is made:

 

1.    The rule nisi granted on 16 November 2023 is hereby confirmed.

 

2.    The JR Family Trust IT 189/99 is finally sequestrated.

 

3.    The costs of this application are costs in the sequestration of the JR Family Trust IT 189/99.

 

 

J T DJAJE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

 

 

APPEARANCES

 

DATE OF HEARING                                   : 11 NOVEMBER 2024      

DATE OF JUDGMENT                               : 24 JANUARY 2025          

           

COUNSEL FOR THE APPLICANT         : ADV CILLIERS SC          

COUNSEL FOR THE RESPONDENTS  : ADV JANSE VAN RENSBURG

 

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