THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1327/2019

In the matter between:

CHARL DANIEL WILKE NO

FIRST APPELLANT
THERESA WILKE NO

SECOND APPELLANT
T ROOS INDEPENDENT TRUSTEE (EDMS) BPK
THIRD APPELLANT

and

GRIEKWALAND WES KORPORATIEF LTD

RESPONDENT

Neutral citation:
Wilke NO & Others v Griekwaland Wes Korporatief Ltd
(1327/2019) [2020] ZASCA 182 (23 December 2020)

Coram:
NAVSA, MOCUMIE, SCHIPPERS and DLODLO JJA and
LEDWABA AJA

Heard:
11 November 2020
Delivered:
This judgment was handed down electronically by circulation
to the parties’ legal representatives by email. It has been published on the website
of the Supreme Court of Appeal and released to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 23 December 2020.

Summary: Civil procedure – action by creditor based on acknowledgement of debt
which related only to arrears – judgment in favour of debtor on basis that amount
of indebtedness not established – subsequent claim by debtor and surety for
cancellation of surety bond – given as security for debt – creditor claiming

entitlement to security on basis of underlying original causes of debt –
acknowledgment of debt reserving creditor’s rights in relation to original causes or
finance agreements – whether creditor precluded by res judicata or issue estoppel
– not same relief on same ground –– appeal dismissed.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein (Daffue J
sitting as court of first instance):
The appeal is dismissed with costs including costs consequent upon the
employment of two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________

Dlodlo JA (Navsa, Mocumie and Schippers JJA and Ledwaba AJA
concurring):

[1] The appellants are the trustees of Wilke Boerdery Trust (the Trust). In
February 2019 they launched an application in the Free State Division of the High
Court, Bloemfontein (the high court), for an order directing the respondent,
Griekwaland Wes Korporatief Bpk (GWK), to cancel a surety bond registered in its
favour in 2003, over two farms in Jacobsdal in the Free State Province (the surety
bond). The surety bond was registered by Mr Charl Daniel Wilke (Wilke), and
Henque 4335 CC (Henque) as security for goods sold and delivered, production
credit granted and monies lent and advanced by GWK to them in the amounts of
R 4 million (Wilke) and R 1 million (Henque), in respect of their farming operations.
The Trust had bound itself to GWK as surety and co-principal debtor in a total
amount of R 5 million, for the due fulfilment of the obligations by the principal
debtors, Wilke and Henque. The high court (Daffue J) dismissed the application
with costs and held that the Trust remained bound as surety to GWK under the
surety bond. The appeal is with its leave.

[2] Since August 2004, GWK extended credit to Henque and Karob Boerdery
(Pty) Ltd (Karob), formerly known as CD Wilke Boerderye, pursuant to numerous
credit agreements (the principal agreements). In March 2005, Wilke applied to

GWK together with Henque and Karob to have the debts owing to GWK
consolidated in a single account in the name of Karob. GWK approved the request
on the express condition that notwithstanding the consolidation of the subject
debts, all securities granted by Wilke and Henque would remain in place in
securitisation of the liability to be assumed by Karob. It is common cause that
Wilke, Henque and Karob were amenable to such request and condition being
imposed.

[3] With effect from March 2005, the debt owed to GWK by Wilke and Henque
at the time were consolidated with the debt of Karob, which assumed liability for
those debts to GWK. Payments thereof by Karob to GWK remained secured by
special notarial bonds registered in favour of GWK by Wilke in 2000 and Henque
in 2003, to secure their indebtedness to GWK, ‘pursuant to any cause whatsoever’.
Thereafter, only Karob contracted with GWK.

[4] In breach of numerous credit agreements and the debt consolidation, Karob
failed to make payment to GWK. As at January 2006 it was in arrears in an amount
of R4 831 873.05, and its total contractual indebtedness to GWK was
R12, 787, 871.82. These amounts were recorded in an acknowledgement of debt
(AOD) which Wilke executed on behalf of Karob on 26 January 2006. In terms of
the AOD, Karob undertook to pay the arrears of R4 831 873.05 to GWK as follows:
equal monthly instalments of R300, 000.00 from January to December 2006, and
a payment of R1, 500, 000.00 on or before 31 August 2006 from the proceeds of
Karob’s summer crop harvest. Wilke bound himself as surety and co-principal
debtor for the due and punctual performance of Karob’s obligations under the AOD.
An appendix to the AOD recorded the manner of calculation of the aggregate
amount alleged to be outstanding, with reference to 21 underlying credit
agreements that were extant at the time of the signing thereof.

[5] The AOD did not novate GWK’s prior principal claim against Karob. Clause
11.1 reads (my translation):

‘The parties record that this acknowledgement of debt is not a novation of the creditor’s
original claim against the debtor, that it does not constitute a waiver of any of the rights of
the creditor, including its right, without notice, upon the original failure to comply with the
terms and conditions of this acknowledgement of debt, in its sole discretion to institute
legal proceedings in terms of the acknowledgement of debt or the original cause of
action.’1
The AOD also contained an acceleration clause:
‘If the debtor fails to make any payment in terms of this acknowledgement of debt on the
payment date, the creditor, in its sole discretion, shall be entitled to:
. . .
recover the full balance of the principal debt and finance costs outstanding on the date of
the breach or failure, without it being necessary for the creditor to inform the debtor of
this.’2

[6] Karob however breached its payment obligations under the principal
agreements, the debt consolidation and the AOD. By 10 April 2007 it was in arrears
in the sum R5 025 458.37. Consequently, in a letter of demand dated 10 April
2007, GWK invoked the acceleration clause in the AOD and claimed payment from
Karob in the sum of R11 655 499.84 before 24 April 2007. Of this amount,
R4 226 302.45 constituted the debt owed to GWK by Henque, which Karob had
assumed in terms of the debt consolidation. Thereafter, Karob made payments

1 Clause 11.1 of the AOD reads:
‘Die partye plaas op rekord dat hierdie skuldbewys nie ’n novasie van die skuldeiser se
oorspronklike eis teen die skuldenaar is nie, dat dit nie afstandoening van enige van die regte van
die skuldeiser insluitende sy reg om sonder kennisgewing met die oorspronklike versuim om die
bepaling en voorwaardes van hierdie skuldbewys na te kom sal die skuldeiser geregtig wees om
in sy uitsluitlike diskresie geregtelike stappe in te stel kragtens die skuldbewys of die oorspronklike
skuldoorsaak’.
2 Clause 5 of the AOD reads:
‘5. Indien die skuldenaar nalaat om enige betaling ingevolge hierdie skuldbewys op betaaldatum te
maak, sal die skuldeiser, in sy uitsluitlike diskresie, geregtig wees om:
5.1.1 . . .
5.1.2
die volle saldo van die hoofskuld en finansieringskoste uitstaande op die datum van
verbreking of versuim te verhaal sonder dat dit nodig is dat die skuldeiser die skuldernaar
hieromtrent in kennis stel;’

and credits were passed on its outstanding indebtedness, so that by 1 July 2009 it
owed GWK an amount of R 7 001 793.90.

[7] On 11 September 2009 GWK issued a provisional sentence summons in
the high court against Karob and Wilke for payment of the sum of R 7 001 793.90,
based entirely on the AOD. On 19 September 2009 the court granted judgment
against Karob and Wilke, jointly and severally, in an amount of R1 917 165.80,
together with interest. The order provided, inter alia (my translation):
‘2.
This order is without prejudice to any rights which the plaintiff might have to recover
further amounts in terms of the present acknowledgement of debt in these proceedings
and in accordance with paragraph 3 hereof.
3.
Regarding the remainder of the plaintiff’s claim in terms of the acknowledgement of
debt, it is ordered that the provisional sentence summons shall remain as a simple
summons, it is deemed that an appearance by the defendants has been entered and that
the proceedings will take place in accordance with the rules of Court.’3

[8] On 5 July 2010 GWK delivered its declaration in respect of the action.
Where appropriate, I refer to this claim as ‘the 2009 action’. Karob was finally
deregistered on 16 July 2010 for want of filing its annual returns. On 8 September
2010, Wilke and Karob (despite the deregistered status of Karob), delivered their
plea. Further payments were received by GWK in the amount of R3 million and
R435, 690.77 on September 2010 and 21 April 2011, respectively. The matter
proceeded to trial. On 13 August 2015, the high court (Kruger J) handed down
judgment and dismissed GWK’s action, essentially on the basis that GWK had
failed to prove the arrear amounts owed in terms of the AOD.

3 The order read:
2. Hierdie bevel is sonder benadeling van enige regte wat die Eiser mag hê om verdere bedrae
ingevolge die onderhawige skuldbewys te verhaal in hierdie verrigtinge en wel ooreenkomstig
paragraaf 3 hiervan.
3. Wat betref die restant van die Eiser se vordering ingevolge skuldbewys word beveel dat die
voorlopige vonnis dagvaarding bly staan as enkelvoudige dagvaarding dat geag word dat
verskyning deur die Verweerders aangeteken is en dat die verrigtinge verder ooreenkomstig die
hoofreëls geskied.’

[9] Kruger J’s findings were as follows. The form and content of the AOD
established that it dealt only with payment of the arrears.  The AOD did not refer
to payment in instalments (‘afbetalingspaaiemente’) for the full principal debt and
did not contain an interest rate and was therefore unusual. It referred to the
different interest rates in the various (underlying) contracts. Failure to pay in terms
of the AOD meant that GWK was entitled to claim the full outstanding amounts
owed to it in terms of the underlying contracts referred to in clause 11 of the AOD.
(1/96/22). Ultimately, GWK failed to establish the applicable rate of interest and
the amount owed by the Trust in terms of the AOD.

[10] GWK was granted leave to appeal to a full court of the high court. The full
court (Moloi and Reinders JJ and Zietsman AJ) held that GWK had decided to
institute legal proceedings in terms of the AOD and not the original causes of action
or accounts referred to in annexure A to the AOD. Had it instituted action in terms
of the latter causes of action, the full court found, there could have been no doubt
about what interest could be charged, on what account from what date, and
whether or not interest could be capitalised. The full court however, concluded that
Kruger J was correct to hold that the amount of indebtedness in terms of the AOD
had not been established. The full court noted that although Kruger J had
dismissed GWK’s claim with costs, the proper order ought to have been one of
absolution from the instance. It did not consider that to be a sufficient basis to
interfere with the order made by Kruger J.  Subsequently, this Court refused an
application by GWK for special leave to appeal against the judgment of the full
court.

[11] In his judgment, Daffue J emphasised that the AOD was not a novation of
the original debts or underlying credit agreements and that GWK had expressly
retained the right to sue the respective debtors on the original and underlying credit
agreements.  Daffue J had regard to the finding of Kruger J that the parties to the
AOD intended to deal only with the arrears.

[12] Daffue J held that there was no indication that GWK, in pursuing an action
based on the AOD, abandoned its other remedies. Dealing with res judicata and
issue estoppel, the judge noted that neither the Trust nor Henque had been cited
as a party in the 2009 action and that the same relief on the same ground had not
been finally adjudicated by Kruger J. The court found that GWK was not asserting
the same subject matter as a basis for holding onto its security, under the guise of
a different cause of action.

[13] The deregistration of Karob meant that the proceedings before Kruger J and
his dismissal of GWK’s claim and the outcome of the appeal are null and void as
against Karob. Daffue J, on the authority of Traub v Barclays National Bank; Kalk
v Barclays National Bank 1983 (3) SA 619 (A) held that the deregistration of Karob
however, did not prevent GWK, as creditor, from proceeding with an action against
the Trust, on the underlying credit agreements. As is evident from the surety bond,
the Trust remains bound as surety to GWK in respect of Wilke and Henque’s
indebtedness to it, regardless of whether Karob’s registration as a company will be
restored.

[14] Counsel for the Trust argued that the high court was incorrect to hold that
GWK could proceed against the debtors based on the original and underlying credit
agreements. GWK could sue for the total debt based either on the AOD, or the
underlying credit agreements. It was submitted that GWK chose the former to the
exclusion of the latter to its detriment, as shown by clauses 5 and 11.1 of the AOD.
Absent an amendment, whilst the 2009 action was pending, to incorporate a claim
based on the underlying credit agreements, so it was argued, it was not open to
GWK to rely on a different ground to claim the same thing. In terms of the ‘once
and for all’ rule, all claims generated by the same cause of action had to be
instituted in one action (National Sorghum Breweries Ltd t/a Vivo African Breweries
v International Liquor Distributors (Pty) Ltd 2001 (2) SA 232 (SCA) at 241D-E).

[15] It was further argued on behalf of the Trust that the high court erred in
rejecting their submission that the outcome of the 2009 action rendered any claim
based on the principal agreements res judicata, or that the latter claim was
precluded by issue estoppel, because neither the Trust nor Henque was a party to
the 2009 action based on the AOD. Although no cause of action was pleaded
against them, nor relief sought from them, a surety is regarded as the ‘same party’
for purposes of a res judicata plea (Aon South Africa (Pty) Ltd v Van den Heever
NO and Others 2018 (6) SA 38 (SCA) para 27).

[16] This Court in Transalloys v Mineral-loy [2017] ZASCA 95 para 22, with
reference to Prinsloo NO & others v Goldex 15 (Pty) Ltd and Another [2012]
ZASCA 28; 2014 (5) SA 297 (SCA) (para 10), described res judicata and issue
estoppel as follows:
‘The expression of ‘res judicata’ literally means that the matter has already been decided.
The gist of the plea is that the matter or question raised by the other side had been finally
adjudicated upon in the proceedings between the parties and that it therefore cannot be
raised again. According to Voet 24.1.1, the exceptio was available at common law if it
were shown that the judgment in the earlier case was given in a dispute between the same
parties, for the same relief on the same ground or on the same cause (idem actor, idem
res et eadem causa petendi) . . . In time the requirements were, however, relaxed in
situations which gave rise to what became known as issue estoppel. This is explained as
follows by Scott JA in Smith v Porritt and others 2008 (6) SA 303 (SCA) para 10:
“Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the
exceptio rei judicata has over the years been extended by the relaxation in appropriate
cases of the common law requirements that the relief claimed and the cause of action be
the same (eadem res and eadem petendi causa) in both the case in question and the
earlier judgment. Where the circumstances justify the relaxation of these requirements
those that remain are that the parties must be the same (idem actor) and that the same
issue (eadem quaestio) must arise. Broadly stated, the latter involves an inquiry whether
an issue of fact or law was an essential element of the judgment on which reliance is
placed. Where the plea of res judicata is raised in the absence of a commonality of cause
of action and relief claimed it has become common place to adopt the terminology of
English law and to speak of issue estoppel. But, as was stressed by Botha JA in

Kommissaris van Binnelandse Inkomste v Absa Bank BPK 1995 (1) SA 653 (A) at 669D,
670J-671B, this is not to be construed as implying an abandonment of the principles of
the common law in favour of those of English law; the defence remains one of res judicata.
The recognition of the defence in such cases will however require careful scrutiny. Each
case will depend on its own facts and any extension of the defence will be on a case by
ase basis. (KBI v Absa Bank supra at 670E-F.) Relevant considerations will include
questions of equity and fairness, not only to the parties themselves but also to
others.”’(Emphasis added.)

[17] In the present case, even if one were to accept generously, in favour of the
appellants, that the parties in the earlier and subsequent litigation were essentially
the same, in order to raise res judicata successfully the appellants must still
establish that ‘the same relief on the same ground or on the same cause’ was
claimed by GWK, to justify holding onto its security. In Aon this court said the
following (at para 22):
‘As mentioned earlier the plea of res judicata in this case takes the attenuated form
commonly referred to as issue estoppel. Res judicata deals with the situation where the
same parties are in dispute over the same cause of action and the same relief, and in the
form of issue estoppel arises:
“ Where the decision set up as a res judicata necessarily involves a judicial determination
of some question of law or issues of fact, in the sense that the decision could not have
been legitimately or rationally pronounced by the tribunal without at the same time, and in
the same breath, so to speak, determining that question or issue in a particular way, such
determination, though not declared on the face of the recorded decision, is deemed to
constitute an integral part of it as effectively as if had been made so in express terms.” ‘
(Citations omitted).

[18] In Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 825G, Corbett
JA stated that ‘cause of action . . . is ordinarily used to describe the factual basis,
the set of material facts, that begets the plaintiff’s legal right of action’. In deciding
whether the same relief is being sought on the same ground, the starting point is
‘to compare the relevant facts of the two cases upon which reliance is placed for

the contention that the cause of action (in the extended sense of an essential
element) is the same in both’ (Janse Van Rensburg NO v Steenkamp [2008]
ZASCA para 25).

[19] Applied to the present case, it is clear that GWK in the 2009 action, did not
claim the same thing on the same ground. As stated earlier, its claim in that action
was founded on the AOD, and then only for payment of the arrears. That much is
clear from both the judgments of Kruger J and the full court. Those judgments
themselves distinguish between GWK’s cause of action based on the AOD and its
causes of action based on the principal agreements. Indeed, Karob and Wilke
defended the 2009 action on the basis that only the arrears of R 4 831 873.05 were
due to GWK; that Wilke had already paid that amount; and that the difference
between the sum of R 12 787 871.82 in the AOD and the arrears, was not due to
GWK under the AOD but by reason of various other causes of action (‘uit hoofde
van verskeie ander skuldoorsake’). (2/395/3.3-3.5)

[20] The contention that GWK elected to sue on the AOD to its detriment, is both
opportunistic and wrong. The execution of the AOD, the breach of which created
a distinct cause of action, did not extinguish the principal agreements between the
parties. These agreements retained their independent existence after the
conclusion of the AOD. Even if the action based on the AOD, which was restricted
to claiming the arrears, was not successful, nothing precluded GWK from resorting
to the causes of action in terms of the original principal agreements. It expressly
reserved the right to do so in clause 11.1 of the AOD. And there is nothing to
suggest that GWK waived this right.

[21] Furthermore, a party may choose any one of the several legal avenues
available to it. If it chooses to pursue sustainable relief that would not necessarily
mean that such a party has abandoned the other. Seeking payment of arrears in
terms of the AOD can hardly be said to exclude a claim for the amounts
outstanding in terms of the underlying credit agreements. More so, since that right

has been expressly reserved it must also be borne in mind that in essence Kruger
J found that the amount of the arrears owing at the time had not been proved.

[22] For the reasons aforesaid the appeal is dismissed with costs, including the
costs consequent upon employment of two counsel.

______________________________
DV DLODLO
JUDGE OF APPEAL

Appearances

For appellants:

S Grobler SC

Instructed by:

JA Botha Attorneys, Bethlehem
McIntyre Van Der Post, Bloemfontein

For respondent:

W Luderitz SC and P Lourens
Instructed by:

Werksmans Attorneys, Sandton
Symington & De Kok, Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

23 December 2020

STATUS

Immediate

Wilke NO & Others v Griekwaland Wes Korporatief Ltd (1327/2019) [2020]
ZASCA 182 (23 December 2020)

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal (the SCA) today dismissed the appeal with costs and upheld an
order of the Free State Division of the High Court, Bloemfontein.

The issue before the SCA was whether the Wilke Boerdery Trust (the Trust) remained bound
as surety to Griekwaland Wes Korporatief Bpk (GWK) under the suretyship and whether the
high court erred in rejecting the Trust’s submission that the outcome of the action rendered any
claim based on the principal agreements res judicata, or that the latter claim was precluded by
issue estoppel.

The appellants, the trustees of Wilke Boerdery Trust, in February 2019, launched an application
in the Free State Division of the High Court, Bloemfontein (the high court), for an order directing
the respondent, Griekwaland Wes Korporatief Bpk (GWK), to cancel a surety bond registered
in its favour in 2003, over two farms in Jacobsdal in the Free State Province (the surety bond).
The surety bond was registered by Mr Charl Daniel Wilke (Wilke), and Henque 4335 CC
(Henque) as security for goods sold and delivered, production credit granted and monies lent
and advanced by GWK to them in the amounts of R 4 million (Wilke) and R 1 million (Henque),
in respect of their farming operations. The Trust had bound itself to GWK as surety and co-
principal debtor in a total amount of R5 million, for the due fulfilment of the obligations by the
principal debtors, Wilke and Henque. The high court (Daffue J) dismissed the application with
costs and held that the Trust remained bound as surety to GWK under the surety bond. The
appeal before the SCA was with the leave of the high court (Daffue J).

Since August 2004, GWK extended credit to Henque and Karob Boerdery (Pty) Ltd (Karob), ,
pursuant to numerous credit agreements (the principal agreements). In March 2005, Wilke
applied to GWK together with Henque and Karob to have the debts owing to GWK consolidated
in a single account in the name of Karob. GWK approved the request on the express condition
that notwithstanding the consolidation of the subject debts, all securities granted by Wilke and
Henque would remain in place in securitisation of the liability to be assumed by Karob.

With effect from March 2005, the debt owed to GWK by Wilke and Henque at the time were
consolidated with the debt of Karob, which assumed liability for those debts to GWK. Payments
thereof by Karob to GWK remained secured by special notarial bonds registered in favour of
GWK by Wilke in 2000 and Henque in 2003, to secure their indebtedness to GWK. In breach
of numerous credit agreements and the debt consolidation, Karob failed to make payment to

GWK thereby breaching the principal agreements. These amounts owed to GWK were
recorded in an acknowledgement of debt (AOD). On 11 September 2009 GWK issued a
provisional sentence summons in the high court (Kruger J) against Karob and Wilke for
payment based entirely on the AOD. On 19 September 2009 the court granted judgment
against Karob and Wilke, jointly and severally, in an amount of R1 917 165.80, together with
interest.

On 5 July 2010 GWK delivered its declaration in respect of the action. Karob was finally
deregistered on 16 July 2010 for want of filing its annual returns. The matter proceeded to trial.
On 13 August 2015, the high court (Kruger J) handed down judgment and dismissed GWK’s
action, essentially on the basis that GWK had failed to prove the arrear amounts owed in terms
of the AOD. GWK was granted leave to appeal to a full court of the high court. The full court
held that GWK had decided to institute legal proceedings in terms of the AOD and not the
original causes of action or accounts.

As stated above, the matter came before the high court (Daffue J) had regard to the finding of
Kruger J that the parties to the AOD intended to deal only with the arrears. The court a quo,
however, emphasised that the AOD was not a novation of the original debts or underlying credit
agreements and that GWK had expressly retained the right to sue the respective debtors on
the original and underlying credit agreements. Daffue J held that there was no indication that
GWK, in pursuing an action based on the AOD, abandoned its other remedies. Dealing with
res judicata and issue estoppel, Daffue J noted that neither the Trust nor Henque had been
cited as a party in the 2009 action and that the same relief on the same ground had not been
finally adjudicated by Kruger J. The high court per Daffue J found that GWK was not asserting
the same subject matter as a basis for holding onto its security, under the guise of a different
cause of action. The court a quo found further that the deregistration of Karob however, did not
prevent GWK, as creditor, from proceeding with an action against the Trust, on the underlying
credit agreements.

On appeal, the SCA held that it was clear that GWK’s claim in the action was founded on the
AOD, and then only for payment of the arrears.  The SCA found that the contention by the Trust
that GWK elected to sue on the AOD to its detriment, was both opportunistic and wrong. The
execution of the AOD, the breach of which created a distinct cause of action, did not extinguish
the principal agreements between the parties. These agreements retained their independent
existence after the conclusion of the AOD. Even if the action based on the AOD, which was
restricted to claiming the arrears, was not successful, nothing precluded GWK from resorting
to the causes of action in terms of the original principal agreements. It expressly reserved the
right to do so in clause 11.1 of the AOD. And there was nothing to suggest that GWK waived
this right.

The SCA concluded that, from the surety bond, it was clear that the Trust remained bound as
surety to GWK in respect of Wilke’s and Henque’s indebtedness to it, regardless of whether
Karob’s registration as a company would be restored.