Farmsecure Grains (Edms) Bpk v Du Toit and Another

• Jurisdiction: South Africa
• Court: Free State Division, Bloemfontein
• Judge: Lekale J
• Judgment Date: 20 September 2012
• Citation: 2013 (1) SA 462 (FB)
• Hearing Date: 30 August 2012
• Docket Number: 2382/2012
• Counsel: S Hefer for the applicant. PJT de Wet for the respondents.

Lekale J:

Introduction and background B

[1] This is essentially an opposed application for confirmation of an interim order authorising the applicant to take possession of and keep certain specified movable properties belonging to the respondents with the assistance of the sheriff on the basis of a notarial bond registered in its favour by the respondents. C

[2] On 14 June 2012 a rule nisi issued at the instance of the applicant calling upon the respondents to show cause why:

'2.1

Die applikant nie gemagtig sal word om sy sekuriteit soos verleen kragtens die notariële verbandakte Nr BN7533/2010 te bevestig en perfek te maak deur die respondente se roerende goedere soos D voorsien deur die gesegde notariële verband wat aangeheg sal word tot die applikant se funderende eedverklaring as aanhangsel C in besit te neem en te hou nie.

2.2

Die balju te Kroonstad of sodanige balju binne wie se regsgebied die vermelde goedere soos vervat in aanhangsel C hiertoe gevind mag word, nie gemagtig en gelas sal word om daarop beslag te lê. E

2.3

Respondente nie beveel sal word om die koste van hierdie aansoek te betaal nie.'

[3] The respondents have since delivered an opposing affidavit to which the applicant has replied.

[4] On 11 October 2010 and 15 December 2011 the parties concluded F written production agreements in terms of which the applicant appointed the respondents as joint independent contractors for the purposes of conducting farming activities on behalf of the applicant on the property leased by the applicant from them for that purpose.

[5] The essential terms of the agreements were, inter alia, that ownership G in the crops planted shall, at all times, vest in the applicant, as the principal, and the respondents, as independent contractors, will keep the harvest for and on behalf of the applicant and they shall have no claim thereto.

[6] On 3 November 2010 the respondents registered a notarial bond H (bond) in terms of which they hypothecated specified and defined movable properties, as well as all other movable property then owned or to be acquired by them in future, in favour of the applicant as security for the R3,5 million which they owed to it.

[7] In terms of clause 14.4 of the bond the applicant is generally entitled I to immediately and without notice assume possession of and keep or sell the hypothecated property for the amount owing, whether payable or not, at the respondents' costs in the event that it, at any time, has reason to believe that its interests are placed in danger in any manner whatsoever as a result of any conduct or negligence of, inter alia, any creditor of the respondents. J

Lekale J

A [8] On 22 May 2012 the sheriff of Kroonstad attached some movable property belonging to the respondents in execution of a judgment granted against the first respondent in favour of his creditor.

[9] The applicant thereupon launched the present proceedings on 8 June 2012 on an urgent basis, citing the fact of the said attachment as giving B cause for seeking to complete its security by taking possession of the hypothecated movables.

Issues in dispute

[10] In both the opposing papers and heads of argument submitted, the C respondents contend that the relief sought by the applicant in the notice of motion is not supported by the founding affidavit and is, in fact, in conflict therewith, insofar as the notice of motion prays for, inter alia, an order authorising the sheriff to attach the property and to hand same over to the applicant, while the founding affidavit avers that the property is to be left on the farm so as to enable the respondents to continue with the D farming operations.

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