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[2022] ZAGPJHC 141
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General Beltings (Pty) Ltd v ABSA Bank Limited (01257/2021) [2022] ZAGPJHC 141 (14 March 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 01257/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
Date:
14 March 2022
In
the matter between:
GENERAL
BELTINGS (PTY)
LTD
APPLICANT
And
ABSA
BANK
LIMITED
RESPONDENT
JUDGMENT
Van
der Schyff J
[1]
The applicant filed an
application for leave to appeal against the whole of the judgment and
orders granted on 2 September 2021.
The application for leave to
appeal was filed on 27 September 2021. Due to unfortunate
circumstances it only came to my attention
that an application for
leave to appeal was filed during 2022.
[2]
The applicant submits
that I erred in dismissing the Rule 30 application and contends that
the Rule 30 application was not before
me to be determined on the
said date. The applicant subsequently submits that I erred in
granting the final liquidation and concomitant
costs order.
[3]
It was submitted on
behalf of the applicant that I only had to take notice of the Rule 30
application and postpone the conclusion
of the liquidation
application pending the hearing and finalisation of the Rule 30
application. In deciding the Rule 30 application
I am said to have
erred by finding that mediation proceedings instituted in terms of
Rule 41(A) amounted to informal settlement
negotiations
[4]
I provided the parties
with the reason for the order granted on 2 September 2021. The
reasons were signed on 10 September 2021 and
subsequently uploaded to
CaseLine. As indicated the legal representative acting for the
applicant in this application conceded
that the proceedings referred
to in the Rule 30 application as ‘mediation proceedings’
amounted to informal settlement
negotiations. This concession was, to
my mind, correctly made against the factual background of the proviso
contained in Rule 41A(4)(c)
that the time limits prescribed by the
Rules for the delivery of pleadings and notices and the filing of
affidavits shall be suspended
from the date of signature of the
minute referred to in Rule 41A(4)(a).
In
casu
no such minute
was signed. Although the parties might have expressed the intention
to mediate during February 2021, the matter
was not referred to
mediation by September 2021.
[5]
The liquidation
application was enrolled to be heard on 2 September 2021. The Rule 30
application was filed on 25 August 2021. The
applicant in the current
application took issue with the enrolment of the liquidation
application. The court was obliged to consider
the Rule 30
application before the liquidation application was heard. If there
was any merit in the Rule 30 application the liquidation
application
would have been postponed. The applicant also failed to demonstrate
that they had a prima facie defence on the merits
of the matter.
[6]
I am of the view that
the appeal would not have a reasonable prospect of success.
ORDER
In
the result, the following order is granted:
1.
The application
for leave to appeal is dismissed with costs.
E
van der Schyff
Judge
of the High Court
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
As a courtesy gesture,
it will be sent to the parties/their legal representatives by email.
The date for hand-down is deemed to
be 14 March 2022.
Counsel
for the applicant: Adv. J de Klerk
Instructed
by:
Banda & Associates Inc.
For
the respondent:
Adv. N Alli
Instructed
by:
Jay Mothobi Inc.
Date
of the hearing:
8 March 2022
Date
of judgment:
14 March
2022