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[2016] ZAGPJHC 171
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Invetstec Bank Limited v Karel and Another (2013/34683) [2016] ZAGPJHC 171 (15 June 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/34683
DATE:
15 JUNE 2016
In the matter
between:
VAN DER
LECO CAREY
ANNE
..............................................................................
Intervening
Party
In
re
:
INVESTEC
BANK
LIMITED
.................................................................................................
Applicant
And
VAN DER
LECO
KAREL
....................................................................................................
Respondent
JUDGMENT ON LEAVE TO APPEAL
MOSHIDI, J
:
INTRODUCTION
[1]
This is an application for leave to appeal against my judgment and
order in dismissing with costs the applicant’s application
to
intervene on 26 January 2015.
THE
GROUNDS OF APPEAL
[2]
The grounds of appeal are as set out in the application for leave to
appeal dated 24 February 2015. The application for leave
to appeal is
also accompanied by an application for condonation for the
applicant’s late filing of the present application.
Both
applications are opposed.
[3]
The reasons for the lateness of the application are contained in
paragraphs 4 to 10 of an affidavit deposed to by applicant’s
attorney of record, Ms C T Canario. In essence, the application
for leave to appeal was filed some 7 days out of time.
The
delay is ascribed to applicant’s previous counsel, Vicky
Olivier, as well as applicant’s current counsel, N Riley.
In my view, the reasons for the delay have been explained
satisfactorily. In addition, the application for condonation
was
launched within a reasonable time. It is trite that the
question of condonation is closely linked to that of whether there
are reasonable prospects of success on appeal. It is also a
matter in the discretion of a court. See, for example,
Melane
v Santam Insurance Co Ltd
1962 (4) SA
531
(A). I have concluded that the condonation sought ought to
be granted, which I hereby do.
[4]
At the time of the order on 26 January 2015, I rendered a brief
ex
tempore
judgment, without sketching the
background facts, significantly, the common cause ones. It has
now become necessary to do
so in this present application, which I do
immediately below.
THE
MAIN APPLICATION
[5]
In the main application, the applicant (Investec Bank) brought
foreclosure proceedings against the intervening party’s
husband, Mr Karel van der Leco (“
the
respondent
”). The main
application was for default judgment for the amount of some R3 770
842,82 (“
the debt
”),
as well as declaring executable the immovable property situated at
Erf 1 B T, Registration Division I.R., Province of
Gauteng (“
the
property
”). There was other
ancillary relief.
[6]
Investec Bank’s cause of action is based on a mortgage bond and
loans advanced to the respondent in respect to the property.
Significantly, the property is registered in the name of the
respondent husband only, and the intervening party is not involved
in
the debt or mortgage bond. As at 20 August 2013, Investec Bank
alleged and, indeed proved, that the respondent was indebted
to it to
the extent of the debt. Further, that the respondent was in
arrears with his mortgage payments in the sum of R268
311,50, as at
the date of the drawing of the main application. The respondent
did not oppose the main application.
[7]
The following facts, summarised, are equally not in dispute:
the intervening party (applicant in the present application)
is
married to the respondent out of community of property; out of
the marriage, two minor children, aged 13 years and 3 years,
respectively, at the time of the divorce summons (April 2012), were
born. The minor children currently reside with the intervening
party at the property; however, the applicant and the
respondent are currently engaged in what appears from the papers, as
an acrimonious divorce action, with numerous Rule 43 applications and
counter-applications, and maintenance proceedings;
the divorce
action, including the applicant’s counterclaim, stand postponed
to an indefinite date; the property is
registered solely in the
name of the respondent, and awaits the outcome of the accrual system
at the conclusion of the divorce
proceedings; and the applicant, has
no obligations to Investec Bank in terms of the mortgage bond
repayments.
[8]
In the application to intervene, the applicant contended,
inter
alia
, that she has a direct and
substantial interest in the main application; that she has a
prima
facie
case, that will easily be proved
in the main application; and that her application to intervene is a
serious one in nature since
her right to, and possession of, the
property, would be prejudicially affected. Investec Bank
opposed the application to
intervene, based on several grounds, as
mirrored below later in this judgment.
UNIFORM
RULE 10 AND SOME APPLICABLE LAW
[9]
Uniform Rule 10, makes provision for the joinder of parties and
causes of action. Subrule (1) of this rule provides that:
“
Any
number of persons, each of whom has a claim, whether jointly, jointly
and severally, separately or in the alternative, may join
as
plaintiffs in one action against the same defendant or defendants
against whom any one or more of such persons proposing to
join as
plaintiffs would, if he brought a separate action, be entitled to
bring such action, provided that the right to relief
of the persons
proposing to join as plaintiff depends upon the determination of
substantially the same question of law or fact
which, if separate
actions were instituted, would arise on such action, and provided
that there may be a joinder conditionally
upon the claim of any other
plaintiff falling.
”
See
Haroun v Garlick
[2007]
2 All SA 627
(C).
[10]
It has now become settled law that the overriding consideration for
joining a party to proceedings is whether such intervening
party has
a direct and substantial interest in the matter or outcome thereof.
Some 81 years ago, in
Morgan and Another
v Salisbury Municipality
1935 (A) 167
at 171, the Court said:
“
The
position may therefore be broadly stated to be that by South African
practice the only cases in which a defendant has been allowed
to
demand a joinder as of right are the cases of joint owners, joint
contractors and partners, in all of which cases there exists
a joint
financial or proprietary interest, but that in other cases a
defendant, as a general rule, has not been allowed to demand
such
joinder.
”
See
also
Henri Viljoen (Pty) Ltd v Awerbuch
Brothers
1953 (2) SA 151
(O) at
168-170. In
Ex Parte Body
Corporate of Caroline Court
2001 (4) SA
1230
, in which the applicant issued
ex
parte
proceedings for its winding-up,
and addressed only to the Registrar of the Court, the Court at 1238
to 1239 of the judgment said:
“
It is a
principle of our law that interested parties should be afforded an
opportunity to be heard in matters in which they have
a direct and
substantial interest.
”
Reference
was also made to
Amalgamated Engineering
Union v Minister of Labour
1949 (3) SA
637
(A) at 651, and 659-600. In
United
Watch and Diamond Co v Disa Hotels
1972
(4) SA 409
(C) at 416, the Court dealt with the discretion of the
court in applications of this nature, and proceeded to state that:
“
Moreover,
when one comes to examine the decisions relating to intervention it
would seem that the test of a direct and substantial
interest in the
subject-matter of the action is again regarded as being the decisive
criterion (see in particular Brauer’s
case, supra, and the
authorities therein cited; Ex parte Pearson and Hutton, NNO, supra).
”
APPLYING
LEGAL PRINCIPLES TO THE FACTS OF THIS MATTER
[11]
In applying the above principles to the facts of the present matter,
in particular the common cause facts, it is plain that
the applicant
for intervention has not made out a case whatsoever for her to be
joined in the main application. She is not
a party to the main
application, nor has she signed any surety for the due fulfilment of
her estranged husband’s obligations
to Investec Bank Ltd.
The latter, as applicant in the main application, has no interest at
all in the outcome of the acrimonious
and apparently protracted
divorce between the intervening party and her husband, but at this
stage, simply seeks to protect its
own interests. (
Cf
in regard to the above,
Strydom v Engen
Petroleum Ltd
2013 (2) SA 187
(SCA),
where the appellant, who was married in community of property, and
had signed a suretyship in favour of the respondent,
and without the
requisite consent of his wife.)
[12]
The respondent in the main application ended in not opposing same,
for obvious reasons. Significantly, the applicant
for
intervention, equally has not advanced any reasonable and noteworthy
defence to Investec Bank’s application, save for
the bald
contention that her substantial interest in the main application lie
in the fact that, she presently resides in the property
with her two
minor children, and that the property would form the substantial
amount of the accrual calculation in terms of the
pending divorce
action. She is, as stated above, married to the respondent out of
community of property. The short answer
to these contentions is
this: the applicant is tritely and generally, not liable for
the respondent’s debts save for
certain exceptions, not
relevant here. Furthermore, the operation of the accrual system
only becomes effective on the dissolution
of the marriage. This
eventuality is currently indeterminable. In all probability,
should the main action succeed against
the respondent, the property
will be sold on auction. After Investec Bank is paid the amount
owing by the respondent, and
if there is any residue, such will
accrue to the estate of the respondent, and to which the present
applicant may lay claim in
terms of the accrual system.
Additionally, the main application is clearly not for the eviction of
the applicant from the
property, but for payment of the debt, and for
an order declaring the property especially executable. Investec
Bank will
suffer prejudice should this be delayed further especially
where there is no defence at all to its claim.
[13]
It was therefore, for all the above reasons that I granted the order,
which I did on 26 January 2015, in dismissing the application
to
intervene with costs.
THE
RULING ON THE APPLICATION FOR LEAVE TO APPEAL
[14] I revert to the instant application for leave to appeal the
above order. I have considered carefully the various grounds
of
appeal, as well as the argument advanced in support thereof.
There are plainly no reasonable prospects of success on appeal.
In addition, it is clear that the threshold to grant leave to appeal
in matters of this nature has been raised by the provisions
of
Section 17(1)(a)(ii)
of the
Superior Courts Act 10 of 2013
.
The
applicant must show that there is some other compelling reason why
the appeal should be heard, including conflicting judgments
on the
matter under discussion. This, the applicant has failed to
demonstrate. For these reasons, the application must be refused.
ORDER
[15] In the result I make the following order:
15.1
The
application for leave to appeal is dismissed with costs.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT RILEY N
INSTRUCTED
BY STEVE MERCHAK ATTORNEYS
COUNSEL
FOR THE APPLICANT
A
QUO
RESS
S L
INSTRUCTED
BY RAMSAY WEBBER ATTORNEYS
DATE
OF HEARING 8 AND 14 JUNE 2016
DATE OF
JUDGMENT 15 JUNE 2016