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[2014] ZASCA 132
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Avnit v First Rand Bank Ltd (20233/14) [2014] ZASCA 132 (23 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20233/14
Reportable
In
the matter between
DAVID
SAMUEL
AVNIT
..................................................................................................
APPELLANT
and
FIRST
RAND BANK trading inter alia as
WESTBANK
and WESBANK AVIATION
FINANCE
...............................................
RESPONDENT
Neutral
citation:
Avnit v First Rand Bank
Ltd
(20233/14)
[2014] ZASCA 132
( 23
September 2014)
Coram:
Mpati P
Heard:
In Chambers
Delivered:
23 September 2014
Summary
:
Leave to appeal – refusal of application by two judges of the
SCA in terms of s 17(2)(
c
)
of the
Superior Courts Act 10 of 2013
– application to the
President of the SCA in terms of
s 17(2)(
f
)
of the Act to refer the decision to the court for reconsideration or
review – exceptional circumstances – what constitutes.
ORDER
The
application is dismissed with costs.
JUDGMENT
Mpati
P
[1]
The South Gauteng High Court, Johannesburg granted a money judgment
against Mr Avnit, the applicant, in favour of First Rand
Bank, the
respondent. The judge refused leave to appeal and Mr Avnit’s
application to this court for such leave was refused
on 19 May 2014
by two judges of this court. This is an application addressed to me
in terms of
s 17(2)(
f
)
of the Superior Courts Act 10 of 2013 (the Act) to refer that refusal
to the court for reconsideration, and if necessary, variation.
As s
17(2)(
f
)
is a new section vesting the President of this court with a power
that the incumbent has not hitherto possessed, I think it desirable
to set out the approach to be taken to such applications.
[2] Section 17(2)
prescribes the manner in which this court is to deal with
applications to it for leave to appeal. They are referred
to two
judges for consideration. If they disagree the President appoints a
third judge and the decision of the majority is the
decision of the
court. Sub-section (
f
) provides that the decision to grant or
refuse an application is final, but then introduces the following
proviso:
‘
Provided
that the President of the Supreme Court of Appeal may in exceptional
circumstances, whether of his or her own accord or
on application
filed within one month of the decision, refer the decision to the
court for reconsideration and, if necessary, variation.’
[3]
The origin of the section no doubt lies in the situation that arose
in
Van
der Walt v Metcash Trading Co Ltd
[2002] ZACC 4
;
2002
(4) SA 317
(CC) where one panel of judges of this court dismissed Mr
van der Walt’s application for leave to appeal and a
differently
composed panel granted an identical application raising
the same point of law.
[1]
It is
not, however, confined to that kind of situation but is a power
available to be exercised by the President of this court
in
exceptional circumstances.
[4] The term
‘exceptional circumstances’ is one that has been used in
various different statutory provisions in varying
contexts over many
years. It was first considered by this Court in the context of its
power in exceptional circumstances to direct
that a hearing be held
other than in Bloemfontein. The question arose in
Norwich Union
Life Insurance Society v Dobbs
1912 AD 395
, where Innes ACJ said
at 399:
‘
The
question at once arises, what are “exceptional circumstances”?
Now it is undesirable to attempt to lay down any
general rule. Each
case must be considered upon its own facts. But the language of the
clause shows that the exceptional circumstances
must arise out of, or
be incidental to, the particular action; there was no intention to
exempt whole classes of cases from the
operation of the general rule.
Moreover, when a statute directs that a fixed rule shall only be
departed from under exceptional
circumstances, the Court, one would
think, will best give effect to the intention of the Legislature by
taking a strict rather
than a liberal view of applications for
exemption, and by carefully examining any special circumstances
relied upon.’
[5]
Later cases have likewise declined any invitation to define
‘exceptional circumstances’ for the sound reason that
the
enquiry is a factual one.
[2]
A
helpful summary of the approach to the question in any given case was
provided by Thring J in
MV
Ais
Mamas Seatrans Maritime v Owners, MV Ais Mamas, and another
2002
(6) SA 150
(C) where he said:
‘
1.
What is ordinarily contemplated by the words ‘exceptional
circumstances’ is something out of the ordinary and of
an
unusual nature; something which is excepted in the sense that the
general rule does not apply to it; something uncommon, rare
or
different: ‘besonder’, ‘seldsaam’,
‘uitsonderlik’, or ‘in hoë mate ongewoon’.
2. To be exceptional
the circumstances concerned must arise out of, or be incidental to,
the particular case.
3. Whether or not
exceptional circumstances exist is not a decision which depends upon
the exercise of a judicial discretion: their
existence or otherwise
is a matter of fact which the Court must decide accordingly.
4. Depending on the
context in which it is used, the word ‘exceptional’ has
two shades of meaning: the primary meaning
is unusual or different:
the secondary meaning is markedly unusual or specially different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a liberal meaning to the
phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.’
[3]
To
this I would add only that in the exercise of the discretion vested
in the President the overall interests of justice will be
the finally
determinative feature.
[6]
In the context of s 17(2)(
f
)
the President will need to be satisfied that the circumstances are
truly exceptional before referring the considered view of two
judges
of this court to the court for reconsideration. I emphasise that the
section is not intended to afford disappointed litigants
a further
attempt to procure relief that has already been refused. It is
intended to enable the President of this Court to deal
with a
situation where otherwise injustice might result. An application that
merely rehearses the arguments that have already been
made,
considered and rejected will not succeed, unless it is strongly
arguable that justice will be denied unless the possibility
of an
appeal can be pursued. A case such as
Van
der Walt
may, but not necessarily will,
warrant the exercise of the power. In such a case the President may
hold the view that the grant
of leave to appeal in the other case was
inappropriate.
[7]
A useful guide is provided by the established jurisprudence of this
court in regard to the grant of special leave to appeal.
[4]
Prospects of success alone do not constitute exceptional
circumstances. The case must truly raise a substantial point of
law,
or be of great public importance or demonstrate that without leave a
grave injustice may result. Such cases will be likely
to be few and
far between because the judges who deal with the original application
will readily identify cases of that ilk. But
the power under s
17(2)(
f
)
is one that can be exercised even when special leave has been
refused, so ‘exceptional circumstances’ must involve
more
than satisfying the requirements for special leave to appeal. The
power is likely to be exercised only when the President
believes that
some matter of importance has possibly been overlooked or grave
injustice will otherwise result.
[8]
Against that background I can deal briefly with Mr Avnit’s
application. (I shall refer to him as ‘the applicant’.)
On 2 April 2009 the respondent (to which I shall, for convenience,
henceforth refer as ‘Wesbank’) launched an application
against the applicant in the Gauteng High Court, Johannesburg,
seeking an order for payment of the sum of USD 3 655 389.97.
The claim was based on a surety agreement concluded between the
parties, in terms of which the applicant stood surety for the first
respondent, Norse Gulfstream Ltd (to which I shall refer as ‘the
Principal debtor’), for the latter’s indebtedness
to the
respondent arising from a loan agreement. Wesbank had also registered
a mortgage bond over a Gulfstream Glll Jet aircraft
(the aircraft)
owned by the principal debtor. On 29 May 2009 Blieden J made an
order, inter alia, authorising Wesbank to ‘take
possession of
the aircraft wherever [it] may be found’, subject to it
(Wesbank) providing the respondents with at least five
days’
notice of any intended sale.
[9]
On 2 February 2012, approximately 30 months after the applicant had
delivered his answering affidavit, Wesbank sought to file
a replying
affidavit. This move was vehemently opposed by the applicant.
Although he had insisted that Wesbank should apply for
condonation
for the late filing of its replying affidavit, the applicant
nevertheless prepared what he referred to as a ‘supplementary
affidavit’ in anticipation of the court admitting the replying
affidavit. In a letter dated 7 March 2012 the applicant’s
attorneys advised Wesbank’s attorneys, inter alia, that should
condonation be granted despite his opposition, the applicant
would
‘require an opportunity to supplement his affidavits . . . and
to call for the production of numerous documents referred
to by
[Wesbank] in its replying affidavit’. The matter was
subsequently set down for hearing, on which day Wesbank abandoned
its
attempt to file a replying affidavit. It had, however, previously
delivered a copy to the applicant’s attorneys.
[10]
The applicant, on the other hand, sought to introduce his
supplementary affidavit, but his attempt failed as the court (Mailula
J), exercising a discretion,
[5]
refused to admit it. Apparently, Wesbank had alleged in the intended
replying affidavit, that it had received an offer for the
aircraft of
USD 1,6 million during October 2009 and that it had eventually sold
the aircraft to a company controlled by it for
R8 675 400.
It appears that Wesbank had also conceded that the applicant was
entitled to a reduction of USD 1,6 million
from the amount claimed.
However, Mailula J granted judgment in favour of Wesbank in the sum
claimed, namely USD 3 655 389.97.
[11]
In the present application the applicant contends that Mailula J
refused to take into account ‘admissions and concessions
made
by Wesbank in its own replying affidavit because it abandoned its
condonation application and reliance in its own replying
affidavit’.
The essence of his complaint is that if Mailula J had had regard to
his supplementary affidavit she would not
have granted judgment in
the amount that she did, but in a reduced sum of USD 2 055 389,97,
because the proceeds of the
sale of the aircraft had to be deducted
from the original amount claimed. The failure by Mailula J to deduct
the amount of the
proceeds of the sale of the aircraft has resulted
in an erroneous judgment or order being given, which, so the argument
proceeds,
if allowed to stand, would be ‘considered as
res
judicata
’ against him. That, he
contends, demonstrates a complete failure of justice; amounts to a
deprivation or infringement of
his right in terms of s 34 of the
Constitution, that is, a denial of his right to have his dispute
decided in a fair public hearing
before a court of law. He submits
that these factors constitute exceptional circumstances which should
move me to refer the decision
of the two judges of this court to
dismiss his application for leave to appeal (petition) for
reconsideration by the court and,
if necessary, variation in terms of
s 17(2)(
f
)
of the Act.
[12] I am not
persuaded that the factors enumerated in the preceding paragraph
constitute exceptional circumstances as envisaged
by the provisions
of the Act. The applicant cannot approbate and reprobate. He cannot
now, after Wesbank had abandoned its attempt
to place certain facts
before the court because of his opposition, complain that Mailula J
failed to consider those facts, when
they were never before her. In
any event, the issues now alleged to constitute exceptional
circumstances were considered not only
by the two judges of this
court who dismissed the applicant’s application for leave to
appeal to this court, but also by
Mailula J, who dealt with them in
her judgment in the application for leave to appeal argued before
her.
[13]
The question whether the applicant is liable to Wesbank in the whole
amount of the judgment or in a lesser amount is one of
accounting. It
is not an issue that requires an appeal. The applicant should surely
be able to ascertain from any relevant source
the exact amount still
outstanding and owing to Wesbank by the principal debtor. It cannot
be argued, therefore, that a failure
of justice has resulted from the
order issued by Mailula J.
[14] The application
is dismissed with costs.
_____________________
L
MPATI
PRESIDENT
APPEARANCES
For
appellant: TWB-Tugendhat Wapnick Banchetti & Partners, Sandton
Honey
Attorneys, Bloemfontein
For
respondent: Lanham-Love Attorneys, Johannesburg
McIntyre
& Van Der Post, Bloemfontein
[1]
Mr
van der Walt was perhaps fortunate as the party granted leave to
appeal was unsuccessful on appeal.
Kgatle
v Metcash trading Ltd
2004
(6) SA 410 (T).
[2]
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC) paras 75-77.
[3]
At
156I-157C.
[4]
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A) at 564H-565E.
[5]
Parow
Municipality v Joyce & McGregor (Pty) Ltd
1973
(1) SA 937
(C) at 938H-939A;
Afric
Oil (Pty) Ltd v Ramadaan Investments CC
2004 (1) SA 35
(N) at 38I-J.