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[2011] ZAECPEHC 24
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Van Niekerk NO and Others v FirstRand Bank Ltd (2738/2010) [2011] ZAECPEHC 24 (7 June 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 2738/2010
Date
heard: 03 June 2011
Date
delivered: 07 June 2011
In the matter between:
HERMANUS
ARNOLDUS VAN NIEKERK N.O.
First Applicant
MARTHINNIS JAKOBUS MöLLER
N.O.
Second
Applicant
LIZELLE MöLLER N.O.
Third
Applicant
MARTHINNIS JAKOBUS MöLLER
Fourth
Applicant
LIZELLE
MöLLER
Fifth
Applicant
and
FIRSTRAND
BANK LIMITED
Respondent
JUDGMENT ON APPLICATION FOR
LEAVE TO APPEAL
DAMBUZA, J
:
This application is based on two
grounds; the first one being that I erred in finding that “
the
agent
(Alida Nel)
was not employed by the plaintiff
”
and further that I erred in finding that the respondent had no duty
of care towards the applicant when considering the
loan application
which is the subject of these proceedings.
Regarding the
first ground, as it was submitted by
Mr
Scott
who
appeared on behalf of the respondent the applicants’
understanding of my finding is incorrect. What I found was that
it
was common cause that Nel was an employee of the developer from
which the applicant bought immovable property. I also found
that
there was “
no
valid basis advanced for the allegation that Nel’s
representations were made on behalf of the plaintiff
”
.
1
Even in this
application the applicant does not refer to any portion of the
record which might be found by another court to support
the
contention that Nel represented the respondent in making the alleged
representations. In the judgment I also found that even
if the
representations were made, they do not constitute a defence valid in
law. This finding is not contested and therefore
even the very
remote probability that another court could reach a conclusion
different from mine does not take the applicants’
case far; in
the end, no
bona
fide
defence
has been raised. Contrary to the submission by
Mr
Moorhouse
in
this application it was not sufficient for the applicants to merely
“
make
allegations
”
in
opposing the application for summary judgement, the allegations had
to constitute a
bona
fide
defence.
Regarding the second leg of the
application
Mr Moorhouse
submitted that although the National
Credit Act (Act 34 of 2005) is not applicable to the transaction
which is the basis of these
proceedings, the applicants should be
afforded protection similar to that which is provided to consumers
under that legislation.
This is in support of the contention that
the respondent owed the applicants a duty of care in considering
their loan application.
Firstly, in the main proceedings this
submission was not advanced on the basis of the National Credit Act.
In any event, viewed
against the specific terms and conditions of
the transaction in question I remain unpersuaded that another court
might reach
the conclusion contended for by the applicants. In the
opposition to the application for summary judgment this contention
was
founded on the fact that the developer was, at some stage,
liquidated and that various investigations of the development scheme
were being conducted. I remain unpersuaded that another court could
reasonably find that such allegations support a contention
that the
respondent had an alleged duty of care towards the applicants and
that it failed to discharge that duty.
In the result:
The
application for leave to appeal is dismissed with costs.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the applicants: Adv A.C. Moorhouse
instructed by Jacques Du Preez Attorneys of Port Elizabeth
For the respondent: Adv P.W.A. Scott
SC instructed by Spilkins Attorneys of Port Elizabeth
1
Paragraph
5 line 4 of judgment.