Trustees for the Time Being of the Lona Venter Familie Trust and others v Firstrand Bank Limited and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mangena AJ |
| Judgment Date | 03 March 2022 |
| Docket Number | 1490/2022 |
| Hearing Date | 24 February 2022 |
| Court | Limpopo Division, Polokwane |
Mangena AJ:
“In all intercourse with my professional brethren, I will be always courteous. No man’s passionsshall intimidate me from asserting fully my own or my clients rights, and no man’s ignorance orfolly shall induce me to take any advantage of him, I shall deal with them all as honorable men,ministering at our common alter’
David Hoffman, A course of legal study
INTRODUCTION
This is an urgent application for an order suspending the execution of the orders granted against the Applicants. The orders were granted subsequent to the institution of the legal proceedings by the Respondent against the Applicants. The facts giving rise to the application are set out below.
BACKGROUND
On or about 26 April 2017, the Applicants entered into an instalment sale agreement with Unigro Financial Services (Pty) Limited (Unigro), Registration Number 2008/009529/07 for the purchase of 1x Nuwe 2017 John Deere CS 690 Katoen Stripper, engine number: [. . . .], chassis number INOC6 9SCH4065007. The total cost of the agreement was R9 720 101.36 inclusive of VAT.
The purchase price was payable in 4 annual instalment payments in the amount of R1 944 020.27 effective from 30 November 2017 with a final instalment due on 30 November 2021.
2023 JDR 2454 p4
Mangena AJ
Firstrand Bank Limited t/a Wesbank issued summons against the Applicants alleging that as at 18th August 2020 the Applicants were in arrears on their financial obligations in an amount of R3 375 679.18. Attached to the summons was instalment sale agreement concluded between the Applicants and Unigro Financial Services (Pty) Limited as well an agreement between Unigro Financial Services (Pty) Limited and Wesbank (A division of Firstrand Bank Limited). The other parties to the agreement are Grocapital Financial Services (Pty) Ltd and Afgri-operations Limited. Clause 6 of the agreement provides for cession and delegation of contracts by Unigro to Wesbank. The agreement was signed on 02nd March 2015.
Upon receipts of the summons, Applicants appointed Tiaan Smuts Attorneys to represent them in these proceedings. On the 13 April 2021, the attorneys served and filed a notice of appointment as attorneys of record. The notice stated that all further pleadings, notices, processes and documents should be served at their offices c/o their correspondents. The notice has both the telephone numbers and e-mail addresses of the respective law firms.
When no notice of intention to defend was forthcoming, Wesbank represented by Hack Stupel and Ross Attorneys approached the Registrar and obtained an order confirming cancellation of the agreement and return of the 1 x Nuwe 2017 John Deere CS 690 Katoen Stripper. The date stamp on the court order is 02 December 2021.
On the 25th January 2022, the Registrar authorised the Sheriff of Mokopane to take the 2017 John Deere CS 690 Katoen Stripper from the Applicants and place it in possession of Wesbank. The Sheriff did as instructed and attended at the Applicant’s farm on 02 February 2022.
Surprised at the turn of events, Applicant’s attorneys addressed a letter to
2023 JDR 2454 p5
Mangena AJ
Hack Stupel and Ross Attorneys confirming an earlier telephone discussion and recorded the following requests:-.
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Accordingly, we requested you to kindly, yet urgently, provide us with the application papers in respect of the default judgment taken against our client, together with the court order granted against our client. We shall be grateful to receive same as a matter of urgency. [4] Our clients have bona fide defences to your client’s claims. Although we have not yet received the application papers, we are of the view that good prospects exist for our clients to have the default judgment rescinded.
We request that your client hold over on any attempted attachment and/or removal steps pursuant to the Court order it obtained in our client’s absence, at least until such time that we have been afforded a reasonable opportunity to consider the application papers.
In the event that your client does not agree to such request our clients will have no alternative but to proceed with an urgent application to stay such process and/or rescind the judgment.
Moreover, we tender that in the interim whilst we await the application(s) papers and consider same, that our client will not in any way move or operate the cotton stripper, which is a 56 tonne machine .........In an effort to further demonstrate our client’s bona tides a tracking device can be installed to the cotton stripper for monitoring by your client.
Hack Stupel and Ross Attorneys responded to the letter advising that it does have a copy of the application for a default Judgment. It further advised that the proposal had...
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