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[2020] ZAGPJHC 252
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Vega Turnkey Proprietary Limited and Others v Firstrand Bank Limited; In Re Firstrand Bank LImited v Vega Turnkey Projects Proprietary Limited and Others (2019/07842) [2020] ZAGPJHC 252 (12 October 2020)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NUMBER: 2019/07842
VEGA
TURNKEY PROPRIETARY
LIMITED
First Applicant
(REGITSRTATION
NUMBER 2012/083466/07)
CEDAR
POINT TRADING 299 PROPRIETARY
LIMITED
Second Applicant
(REGISTRATION
NUMBER 2008/010242/07)
CHARAMBANA
CHIMPELO
Third Applicant
(IDENTITY
NUMBER […])
and
FIRSTRAND
BANK
LIMITED
Respondent
In
re: FIRSTRAND BANK LIMITED
Applicant
And
VEGA
TURNKEY PROJECTS PROPRIETARY
LIMITED
First Respondent
(REGITSRTATION
NUMBER 2012/083466/07)
CEDAR
POINT TRADING 299 PROPRIETARY
LIMITED
Second Respondent
(REGISTRATION
NUMBER 2008/010242/07)
CHARAMBANA
CHIMPELO
Third Respondent
(IDENTITY
NUMBER […])
EMMANUEL
DZUNANI NYATHI
Fourth Respondent
(IDENTITY
NUMBER […])
ZWELAKHE
GIFT
NYATHI
Fifth Respondent
(IDENTITY
NUMBER […])
THE
COMPANIES AND INTELLECTUAL
PROPERTY
COMMISSION
Sixth Respondent
THE
MINISTER OF
FINANCE
Seventh Respondent
THE
MINISTER OF PUBLIC
WORKS
Eighth Respondent
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
SKIBI
AJ
[1]
The applicants who were the first, second and the third respondents
(Sureties) in the main application seek leave to appeal
against the
money judgment and order which was handed down on 13 December 2019.
Leave to appeal is sought either to the Full
Bench of this Division,
alternatively, Supreme Court of Appeal.
[2]
According to the Uniform Rules of Court, the applicants had 15 days
to apply for leave to appeal the judgment. The application
for
leave to appeal was served to the interested parties on 9 January
2020. This application was only brought to my attention
on 2
September 2020 through the email which was sent to my Registrar who
assisted me at the time the judgment was handed down.
The allegations
by the applicants that despite various correspondence didn’t
get any response is not supported by any evidence,
as there is not a
single proof of those follow up messages. It is almost ten
months since the judgment was handed down and
there is no explanation
under oath as to why there was such a delay.
However,
during the oral argument counsel submitted that this application was
filed timeously on Caselines. I expressed my
displeasure on
this not properly explained delay and this is not acceptable and
cannot be allowed to continue.
[3.]
The application for leave to appeal is premised on the grounds that
the court erred in its finding of fact and/or law in that,
the Court
of Appeal would come to a different finding pertaining to the
following:
[3.1] that the court did
not find that the loan agreement concluded between Firstrand
(respondent) and the principal debtor (Vega
Holding) was void because
of suspensive conditions or conditions precedent to which the loan
agreement was subject, were not timeously
fulfilled or waived.
[3.2] the finding of the
court that the conduct and/or performance under the loan agreement by
Vega Holding have effectively estopped
the Sureties from belatedly
relying on the non-fulfilment or non-waiver of the relevant
conditions.
[3.3] that the court did
not find that there was a material and genuine dispute of fact
pertaining to timeous fulfilment and/or
waiver of these suspensive
conditions;
[3.4] the finding of the
court that the respondent had lawfully accelerated the debt owed by
Vega Holding in terms of the loan agreement;
[3.5] that the court’s
finding that the Sureties did not discharge their onus rebutting the
prima facie
evidence established by the certificates of
balance relied upon by the respondent.
[3.6] the finding that
the Sureties were indebted to the respondent.
[3.7] the court failing
to find that it was necessary for the respondent to bring an
amendment to correct the amount claimed by
it in the notice of
motion;
[3.8] the Court’s
finding in relation to the date upon which interest is to be
calculated in terms of the judgment;
[4]
Section
17 of the Superior Courts Act
[1]
(the Act) provides that;
"(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i)
the appeal would have
a
reasonable
prospect of success; or
(ii) there is
some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;"
[5] The interpretation of
Section 17(1) (a) of the Superior Court Act, has been
observed
in some recent cases where it has been held that this section has
raised the test to be satisfied in an application for
leave to
appeal. I refer to the quoted dicta in the judgment by Bertelsmann J
in the case of
The
Mont Chevaux Trust v Tina Goosen & 18 Others
[2]
where
the following was said:
“
[6)
It
is clear that the threshold for granting leave to appeal against
a
judgment
of
a
High
Court has been raised in the new Act. The former test whether leave
to appeal should be granted was
a
reasonable
prospect that another court might come to
a
different
conclusion, see Van Heerden v Cornwright
&
Others
[3]
.
The use of the word "would" in the new statute indicates
a
measure
of certainty that another court will differ from the court whose
judgment is sought to be appealed against."
[6]
In
S
v Smith
[4]
where
Plasket AJA (as he then was) put it thus:
"[7]
What the test of reasonable prospects of success postulates is a
dispassionate
decision, based on the facts and the law, that
a
court of appeal could reasonably
arrive at
a
conclusion
different to that of the trial court. In order to succeed, therefore,
the appellant must convince this court on proper
grounds that he has
prospects of success on appeal and that those prospects are not
remote but have
a
realistic
chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case
is arguable on
appeal or that the case cannot be categorised as hopeless. There
must, in other words, be a sound rational basis
for the conclusion
that there are prospects of success on appeal."
[7]
I
n
considering the application for leave to appeal, it is of critical
important to acknowledge that there is a higher threshold which
needs
to be met for leave to appeal to be granted in line with the
judgments referred to above. In terms of the recent cases
cited
above and in various higher courts
[5]
,
it means that there must exist more than just a mere possibility that
another court will – not might – find differently
on both
facts and law. See also
Nedbank
Limited v Steyn N.O & Others
[6]
[8]
The applicants argued that they have a made a case for granting leave
to appeal in that there is a reasonable prospect that
another court
may come to a different conclusion based on the grounds advanced.
On the other hand, counsel for the respondent
contended that there is
no reasonable prospects of success that another court may come to a
different conclusion. It is further
contended on behalf of the
respondent that in the application for final winding up of the
applicants arising out of the same cause
of action, Keightley J
[7]
has rejected the argument by the applicants on some of the grounds
relied upon by the applicants in this application.
[9]
However, the respondent concedes, correctly so in my view, that there
is a patent error in that the order granted in my judgment
only with
regards to the calculation period of the interest. The
respondent’s contention is that this is an error which
may be
cured by myself in terms of Rule 42(1) (b) of the Uniform Rules of
this Court. I was also referred to the Supreme
Court of Appeal
decision of
Thompson
v South African Broadcasting Corporation
[8]
where
Harms JA stated:
[5]
The applicant does not submit that the costs order was unjustified if
the correctness of Grosskopf JA's factual findings were
accepted.
Instead, the argument is that the factual findings were incorrect and
should be reconsidered. In this regard
there appears to be a
misunderstanding about the power of a court to amend or supplement
its findings in contradistinction to its
orders. The correct position
was spelt out in
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) 307C-G:
“
The
Court
may correct a clerical, arithmetical or other error in its judgment
or order so as to give effect to its true intention
.
. . This exception is confined to the mere correction of an error in
expressing the judgment or order; it does not extend to altering
its
intended sense or substance. KOTZÉ, J.A., made this
distinction manifestly clear in [ West Rand Estates Ltd v New Zealand
Insurance Co Ltd
1926 AD 173
at 186 7], when, with reference
to the old authorities, he said:
'The
Court can, however, declare and interpret its own order or sentence,
and likewise correct the wording of it, by substituting
more accurate
or intelligent language so long as the sense and substance of the
sentence are in no way affected by such correction;
for to interpret
or correct is held not to be equivalent to altering or amending a
definitive sentence once pronounced.'
”
(
my
own underlining
)
[10
In response to the argument, counsel for the applicants, disagrees
with the submission by the respondent that I can simply amend
my
order regarding the calculation time as to when the interest should
start to run. The applicants contended that if such
amendment
is granted at this stage it would mean that the application was
issued prematurely if a reliance can be placed on the
certificate of
balance which was issued on 18 April 2019 when the application was
instituted on 1 March 2019 and this replacement
certificate was only
attached to the replying affidavit.
[11]
It is not necessary
for purposes of this application to discuss the merits of each of
these grounds for leave to appeal in detail.
Although
I am not persuaded about the existence of the reasonable prospects of
success on some of the grounds advanced by the applicants,
but I am
inclined to grant them leave to appeal:
[11.1]
It is common cause that there is a patent error in the order I
granted on 13 December 2019 regarding the calculation period
of the
interest on the capital amount. I agree with counsel for the
respondent that Rule 42(1) (b) of the Uniform Rules of
this Court
gives the court a discretion to amend its order/s. The Supreme
Court of Appeal judgment
[9]
confirms that this is legally permissible in exceptional
circumstances.
[11.2]
I took some time in order to ascertain as to whether it will be
proper for me
in
the application for leave to appeal
to
mero
motu
amend the order I granted on 13 December 2019. In the cases
before the judgment by the SCA decision of
Thompson
[10]
and
before the coming into effect of Rule 42 (1) (b) of the Uniform
Rules, it appears Courts were guided by the common law principle
which stated once the Court has granted an order, it becomes
functus
officio
.
See the Case of
First
Nation Bank of South Africa v Jurgens
[11]
;
Seatle v Protea Assurance Co Ltd
[12]
.
However,
the Supreme Court of Appeal in
Thompson’s
case
[13]
which is instructive to me says that the Court may amend its order.
T
hompson
judgment
does not specify that this may be done in an application for leave to
appeal. After having heard counsel on this point I
am of the
view that it will be an irregular for me to
mero
motu
amend my order in the application for leave to appeal especially in a
case where the very same issue is one of the applicants’
grounds of appeal.
[11.3]
Another issue raised by the applicants is that the notice of motion
was not amended to reflect the capital amount of which
I concluded
that it has been proven by the respondent based on the certificate of
balance dated 18 April 2019. There is no merit
on this contention.
The case law is clear on this point that the court may grant a money
judgment on the amount proven even
if it is less than what was
claimed in the notice of motion. The Court may grant an order on
claim proven without requiring the
applicant to amend the notice of
motion. See the Case of
Rossouw
v FirstRand Bank Ltd
[14]
;
Van Loggernberg, Erasmus:
Superior
Courts Practice,
Second
Edition, Volume 2, Service 13 at D1-526. However, there may be
merit in the contention that the certificate of balance
was only
attached to the respondent’s supplementary papers, albeit,
there was an order granted for the amendment of the papers.
I
am of the view that another may reach a different conclusion on this
point and on the issue of suspensive and/or disbursement
conditions
were timeously fulfilled or waived. It is important to mention
that this order has nothing to do with the application
for final
winding up application which is a completely different matter and
having its own legal requirements.
[12]
The issues raised in this application do not deserve the hearing and
adjudication by the Supreme Court of Appeal. Therefore,
I am
going to grant leave to the full bench of this Division.
[13] Having considered
the matter, the following order is made: –
1.
The application for
leave to appeal by the first, second and third respondents is granted
to the Full Bench of this Division;
2.
Costs to be costs in
the appeal
_______________________
N.
SKIBI
Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg
DATE
OF HEARING: 2 October 2020
DATE
OF JUDGMENT: Delivered by email and on Caseilines
APPEARANCES:
COUNSEL
FOR THE Applicants: Mr M. Kerr-Phillips
Mathew
Kerr-Phillips Attorneys
Randburg
COUNSEL
FOR THE RESPONDENT: ADV.P.G. Louw
Instructed
by: Werksmans Attorneys
Sandton
[1]
10 of 2013
[2]
2014 JDR 2325 (LCC) at para [6]
[3]
1985 (2) SA 342
(T) at 343H
[4]
2012 (1) SACR 567
(SCA) at para 7
[5]
Fair Trade Tobacco Association v The President of the Republic of
South Africa s & Others ZAGPPHC 31 (24 July 2020);
[6]
2020 JDR 0754 (GJ) …
[12]
Thus,
the threshold for granting leave to appeal has been raised in terms
of the former section 17(1) of the Act. The usage of
the word
“would”, introduces a stricter test and a higher
threshold. See in this regard
Acting
National Director of Public Prosecution v Democratic Alliance
2016 JDR 1211 (GP).
[7]
First
Rand Bank v Vega Holdings Proprietary Limited & Others Case
7841/19
(delivered on 10 May 2020) :The final winding up application: in the
matter
[8]
2001 (3) SA 746 (SCA)
[9]
Thompson
case Supra
at para [15]
[10]
Supra
[11]
1993(1) SA 245 (W) at 246-247
[12]
1984 (2) SA 537
(C)
[13]
Supra
[14]
2010 (6) SA 439
(SCA) at para [48]