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[2020] ZAGPJHC 338
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Multipoint Logistics CC and Another v Firstrand Bank Ltd t/a Nissan Finance (24520/2018) [2020] ZAGPJHC 338 (24 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24520/2018
In
the matter between:
MULTIPOINT
LOGISTICS CC
First
Applicant/Defendant
NTLANTLA
GEORGE GULE
Second Applicant/Defendant
and
FIRSTRAND
BANK LTD T/A NISSAN FINANCE
Respondent/Plaintiff
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
NGALWANA
AJ:
Introduction
[1]
On 28 March 2019 I handed down judgment in which I granted summary
judgment in favour of the respondent.
[2]
I came to know of an application for leave to appeal against that
judgment on Monday 10 August 2020 when I received a CaseLines
link to
a related application (for the rescission of Justice Spilg’s
judgment pending the finalisation of this application
for leave to
appeal) although it appears that the notice of application for leave
to appeal (dated 15 April 2019 and served on
respondent on 17 April
2019) against my judgment may have been filed some time in 2019.
There is no court stamp on it.
[3]
The parties were invited to file heads of argument by Friday 14
August 2020. It was indicated that the application would lapse
if the
applicants should fail to file their heads of argument by this date.
The respondent’s heads are dated 30 March 2020.
While the
filing sheet is dated 6 April 2020, it is not clear when the heads
were in fact filed. The applicants’ heads of
argument,
comprising five short paragraphs of one short sentence each and on
one page, are dated 9 June 2020. It is not clear when
they were filed
either. I have considered both sets of heads. The applicants’
heads deal with a rescission application launched
by the respondents
against the judgment or order of Justice Spilg, not with the leave to
appeal against my judgment of 28 March
2019. They have not filed
heads of argument in the application for leave to appeal as directed.
In the circumstances, I considered
not writing this judgment because,
on my directive, the application has lapsed for failure by the
applicant to prosecute the application
by taking the next step of
filing heads of argument as directed and without any
explanation. Nevertheless, I thought
best to write the judgment on
request from the respondent’s attorneys.
[4]
It is in my view not necessary to schedule oral argument in the
covid-19 circumstances now prevailing. The arrangements for
video
conferencing (to which I as the Judge presiding have no access) in
order to hear oral argument on issues that have already
been
determined, argument that has already been advanced, and on the basis
of a standard that is capable of being determined on
written
argument, are in my view not worth the trouble.
The
Standard
[5]
It is axiomatic that the applicable standard in applications for
leave to appeal in the high court has traditionally been whether
there is a reasonable possibility that another Court may come to a
different conclusion than that reached by the Court of first
instance.
[6]
Now the position is governed by the
Superior Courts Act 10 of 2013
which says leave to appeal may be granted where
6.1
the appeal would have a reasonable prospect of success;
[1]
or
6.2
there is some compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
[2]
or
6.3
the decision sought will have a practical effect or result;
[3]
and
6.4
the appeal would lead to a just and prompt resolution of the real
issues between the parties even where the decision sought
to be
appealed does not dispose of all the issues in the case
[4]
.
Analysis
[7]
The standard of prospects of success is now more stringent than the
old traditional position. Now an applicant must show that
the appeal
would have reasonable prospects of succeeding.
[8]
On the undisputed facts in this case the application meets none of
these four requirements. The applicants advance three grounds
for
their application:
8.1 The first is that
this court erred in determining that the copy of the lost agreement
relied on by the respondent was duly proved
in terms of the
Electronic Communications and Transactions Act, 2002 (“the
ECTA”) and that the generic agreement relied
on was of any
force.
8.2 The second is that
this court erred in determining that the National Credit Act (“the
NCA”) was not applicable to
the second applicant who was not a
corporate entity with assets or income in excess of the threshold
required. In addition, they
say, the respondent did not prove that
this was not a large agreement as defined in the NCA. The respondent,
they say, has not
complied with the above section in respect of
second applicant.
8.3 Thirdly, they say
this court erred in determining that the second applicant be ordered
to return the vehicle in question as
the second applicant is merely a
surety for payment of any amount due.
[9]
Each of the grounds is merely stated without any argument to sustain
them. There is no merit in any of them. The first ground
is imprecise
and vague as it does not explain precisely what about the agreement
needed to be proved and in terms of what specific
provision/s of the
ECTA. In any event, the applicants have advanced no compelling
argument to displace my satisfaction with the
integrity of the
information contained in annexure “B” to the particulars
of claim as articulated in the main judgment.
[10]
The second and third grounds are simply not of the sort that would
successfully repel a summary judgment. Even if proven, neither
ground
would forestall a summary judgment against the first applicant. As a
co-principal debtor with the first applicant, the second
applicant
must suffer the fate of the first applicant. That is the effect of
suretyship. And so, for purposes of summary judgment,
a co-principal
debtor is not a separate person to be treated differently and by
different standards from those by which the principal
debtor is
treated. The surety effectively steps in the shoes of the principal
debtor. If different standards applied in respect
of the surety, that
would defeat the purpose of suretyship. In addition, the principal
debt in terms of the agreement is in excess
of the prescribed amount
for large agreements. The applicants have not suggested otherwise or
provided evidence showing that the
principal amount to which the
agreement relates is less than R250,000. It is thus unclear what
further proof the applicants expect
the respondent to provide.
[11]
For these reasons, the appeal has no prospects of success and there
is no compelling reason for the appeal to be heard. It
would thus be
unpardonably louche to burden the appeal court with this case.
[12]
In the result, the following order is made.
Order
Leave
to appeal is refused with costs.
_______________________
V
Ngalwana
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
Appearances
For
the applicants: Mervyn Fehler
Instructed
by: Mervyn Fehler Attorneys
For
the respondent: BM Lukhele
Instructed
by: Rossouws Lesie Inc
Date
of respondent’s heads: April 2020
Date
of applicants’ heads: no heads filed
Date
of judgment: 24 August 2020
[1]
Section 17(1)(a)(i)
[2]
Section 17(1)(a)(ii)
[3]
The effect of section 17(1)(b) read together with section
16(2)(a)(i) is that where the decision sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.
[4]
Section 17(1)(c)