Van Der Westhuizen NO. and Another v The Land and Agricultural Development Bank of SA and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mangena AJ
• Judgment Date: 14 February 2022
• Docket Number: 3173/2020
• Hearing Date: 08 February 2022
• Court: Limpopo Division, Polokwane
• Citation: 2022 JDR 2081 (LP)

Mangena AJ:

[1]

On the 24th June 2021 this court granted a final order of sequestration against Sweet Home Mountain Lodge Trust. The order resulted in the trust being divested of its rights to manage its assets and same were placed in the hands of the trustees duly appointed by the Master of the High Court.

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Mangena AJ

[2]

At the time of sequestration, the trust was the registered owner of an immovable property described as Farm Sweethome 322, Registration Division KQ, Limpopo Province, in extent 1729, 0445 hectares. It is the transactions relating to this farm which are at the centre of this litigation. This is how it happened.

[3]

Jan Kruger Robbertse concluded a credit loan agreements with Unigro Financial Services Proprietary Limited for a total sum of R20 million. These loans were taken in 2013 and 2014 respectively. As security for his indebtness, the trust entered into an unlimited suretyship agreement with Unigro Financial Services (Pty) Ltd (Unigro) and committed itself to pay for Mr Robbertse should he default in his repayment. In 2013 the trust hypothecated the property (Farm) as security for Mr Robbertse's debt by registering a mortgage bond for R15 000 000-00. In 2014, a second mortgage bond was registered for R5000 000-00.

[4]

The credit loan agreements were later ceded to the Land and Agricultural Development Bank of South Africa (Land Bank). When Mr Robbertse defaulted on his repayment, Land Bank instituted legal proceedings for the repayment of all balance owing on various accounts as well as cancellation of the agreements. It also instituted sequestration proceedings against the trust and obtained a provisional order on 27 October 2020. It is this provisional sequestration order which was confirmed as final on 24 June 2021 by Makgoba JP.

[5]

Upon receipt of the final sequestration order and their appointment as trustees of the insolvent estate of the Sweet Home Mountain Trust, the trustees took over the management of the farm and placed it on sale. I interpose to state that the trustees, Mr Robbertse and Van Der Westhuizen had on 06 April 2021 appointed Mr Deon Marius Botha, the fifth respondent and the provisional trustee at the time; their lawful agent and nominee to act on their behalf and sign documents relating to the sale of the farm Sweet Home. Notably the Power of attorney further states that "We tender to unconditionally support and not oppose the transfer of the Sweet Home Farm in our personal capacities."

[6]

On the 19th June 2021, the trustees accepted an offer of R23 000 000-00 to purchase the farm property. The acceptance was subject to the Master of the

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Mangena AJ

High Court extending their powers. The Master approved the sale on 24 August 2021.

[7]

The applicants in their capacities as the trustees of the trust launched an application for rescission of the "default judgment" granted by Makgoba JP on 24 June 2021 placing the trust under final sequestration. This application is opposed by the first, fifth and sixth respondents and is still pending before this court. Pending rescission of the default judgment, the applicants requested written confirmation from the first respondent that she will not proceed with the sale of the immovable property. No such written confirmation was made and instead the first respondent filed an opposing affidavit to the rescission application wherein the sale of the farm was confirmed.

[8]

Unhappy with the turn of events, the applicants approached this court on an urgent basis for an order suspending the operation and execution of the order finally sequestrating the Sweet Home Mountain Lodge trust, pending the finalisation of the rescission application. This application is opposed by the first, fifth and sixth respondents primarily on the basis that it is male fide, constitute an abuse of process and therefore not in the interest of justice.

[9]

At the commencement of the proceedings I prevailed upon counsel to argue both points in limine and merits simultaneously as they appear to be closely interlinked. Counsel duly obliged and I am grateful for their kind understanding. I duly considered the submissions made including all the points in limine raised and given the conclusion reached, I propose to dispose of the matter on its merits.

[10]

Rule 45A of the Uniform Rules provides that the court may suspend the execution of any order for such period as it may deem fit. Both counsel agreed that the rule grants the court a wide discretion which must be exercised judicially. It is also accepted as a general principle that a court will grant a stay of execution where a real and substantial injustice would otherwise occur. Waglay J (as he then was) summarised the legal position on the application of Rule 45A in Gois v Van Zyl, 2011 (1) SA 148 (LC) at para 37 as follows:

"The general principles for the...