A High Court judge has compared Berdine Odendaal’s request for access to the last R158 000 remaining in a frozen bank account to Oliver Twist’s demand for “more” food.
But that was where the comparison ends, Judge Eduard Wille said.
“This in the context where the applicant is not subjected to poverty. Further, she does not experience harsh living conditions and her predicament does not shed light on the social inequalities and injustices of the Victorian era (in England). I refrain from making any references to any other dramatis personae in this celebrated novel by Charles Dickens,” the judge wrote in his ruling.
Odendaal, the alleged romantic partner of the late Markus Jooste, has sought permission from the Supreme Court of Appeal (SCA) to appeal this ruling by the High Court in Cape Town, which essentially denies her access to a monthly living allowance of R150 000.
Amid the Steinhoff scandal, the avid polo player found herself at the centre of scrutiny. She became one of the first individuals linked to the controversy to face the freezing of her assets by the South African Reserve Bank (SARB).
In late April and early May 2021, the SARB blocked four of Odendaal’s bank accounts and seized two cars and four properties in the prestigious Val de Vie Estate near Paarl.
News24 reported that the SARB’s move was underpinned by allegations that Odendaal had received substantial loans amounting to about R60 million from Mayfair speculators, a horse-racing company associated with Jooste.
The former Steinhoff chief executive took his own life on 21 March, just a day prior to being instructed to surrender himself to the Hawks.
Read: Jooste’s death raises questions about the fate of seized assets and Steinhoff prosecution
After her accounts were frozen, Odendaal struck a deal with the SARB for a monthly payment of R150 000 to cover “all reasonable living expenses”. This amount was sourced from one of the blocked accounts. News24 reports that, in March 2022, the bank ceased these payments when Odendaal sought an order, unsuccessfully, to have the SARB cover her legal fees as well. The SARB interpreted the further litigation as a repudiation of its agreement with Odendaal.
So far, Odendaal has lost two court attempts to have the SARB reinstate the monthly allowance.
In the most recent application for leave to appeal heard on 1 February in the High Court, Odendaal dropped her request for extra legal fees beyond the monthly allowance. Instead, the focus shifted to the remaining R158 000 in the blocked bank account and the reinstatement of the monthly payments to her.
The R158 000 includes one part of R150 000, with the remaining R8 000 representing the last portion of these funds left in the account.
Prior to cutting off the payments, Odendaal had already received more than R1.7m from this blocked account.
Repudiation
The core complaint in the latest application concerned the determination of the issue of “repudiation”.
When “a party to a contract, without any lawful grounds, indicates through words or positive conduct their deliberate and unequivocal intention to no longer be bound by the contract”, they are said to have repudiated the contract.
Odendaal claimed she was not in repudiation because she had not violated any “obligations” attached to the agreement, primarily because, she claimed, there had not been any.
The SARB contended that an obligation in a contract refers to the responsibilities or actions that both parties must fulfil. These can include making payments, delivering goods or services, or maintaining confidentiality. The SARB said an obligation also entails complying with the entire contract legally.
In simpler terms, obeying the entire contract means following all its terms and conditions, such as deadlines, warranties, dispute resolution processes, and any other provisions stated in the agreement. Essentially, it involves adhering to every aspect of the contract to ensure full enforcement and respect for the rights and duties of all involved parties.
In his judgment delivered on 7 February, Judge Wille said “an application for specific performance (in other words, a court order) could constitute a breach of contract, which could occur when one party fails to fulfil their obligations as outlined in the contract without a legal justification”.
“It involves a violation or non-performance of a material term or condition of the contract,” he said.
However, if Odendaal, instead of seeking an order, had proceeded by way of a declarator, the outcome might have been different, the judge said.
A declarator is a legal action taken by a party to a contract to seek a court’s declaration or determination of the party’s rights, obligations, or the interpretation of contract terms. It is a safe means to clarify the contract’s terms or resolve any disputes arising from its interpretation.
“Significantly, if the applicant believed that uncertainty existed regarding some of the terms of the agreement, it was open for her to proceed by way of a declarator. In the circumstances, a declarator could not be considered to constitute a breach of the contract,” Judge Wille said.
The judge refused the leave of appeal on the grounds that there was “no reasonable prospect that an appeal court will find that repudiation does not occur when a contracting party unequivocally intends not to comply with his or her material contractual obligations, without lawful excuse”.
Die Burger reports that, in her SCA application, Odendaal argues that the High Court erred in accepting the SARB’s “repudiation” argument.
The court proceedings continue.
I will not sleep if there is so much money on my name….