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[2012] ZASCA 7
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Counter Point Furnishers CC v S M Fraser t/a Salica (896/10) [2012] ZASCA 7 (9 March 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 896/10
No
Precedential Significance
In
the matter between:
Counter Point
Furnishers CC
…................................................................
Applicant
(Registration No.
1992/019084/23)
and
S M Fraser t/a Salica
…..........................................................................
Respondent
Neutral
citation:
Counter Point Furnishers CC v S M Fraser t/a Salica
(896/10)
[2012] ZASCA 7
(2 March 2012)
Coram:
BRAND,
SNYDERS, BOSIELO, LEACH AND WALLIS JJA
Heard:
02 March
2012
Delivered: 02 March
2012
Summary:
Appealability
- provisional sentence
ORDER
Leave to appeal from:
South Gauteng High Court, Johannesburg (Mokgoatlheng J sitting as
court of first instance).
The application for leave
to appeal is dismissed with costs.
JUDGMENT
SNYDERS JA (Brand,
Bosielo, Leach and Wallis JJA concurring)
[1] This is an
application for leave to appeal referred for argument in court in
terms of s 21(3)(c) of the Supreme Court Act 59
of 1959. Leave to
appeal was sought from this court after Mokgoatlheng J in the court
below granted provisional sentence and refused
leave to appeal. After
the matter was heard the application for leave to appeal was
dismissed for the reasons that follow.
[2] The relevant facts in
the matter are common cause. The respondent sold an immovable
property to the applicant in terms of a
written agreement of sale.
Clause 17.1 of the agreement reads:
‘
Should any party to this
contract cause any delay in the Registration of transfer he/she shall
from the day of the notification
of his default, pay to the aggrieved
party interest calculated on the purchase price at the rate charged
by any financial institution
on first home loan mortgages, until the
date on which the defaulting party ceases to be in default.’
[3] The respondent issued
a provisional sentence summons against the applicant and relied on
the written agreement of sale, particularly
the quoted clause 17.1
for a claim of interest in the amount of R215 087 calculated on the
purchase price at the rate of 11 per
cent per annum for the period 8
May 2009 until 3 September 2009. The respondent made the following
allegations in the summons:
‘
The defendant caused a delay in
the registration of transfer by failing to furnish the guarantee
which it was obliged to furnish
in terms of clause 4.1 of the
agreement. The defendant was notified of such default on the 8
th
May 2009. the defendant remedied that default on the 3
rd
September 2009.
The rate of interest charged by ABSA
Bank, being a financial institution of the sort contemplated in the
agreement is 11%.’
[4] The applicant
resisted the provisional sentence summons in an answering affidavit
in which he confines his attack to the liquidity
of the written
agreement of sale. He raises the interest rate applied, the identity
of the bank, the date of alleged default, the
date of notification of
default, the date that the default was remedied and the due date as
aspects that require evidence and that
destroy the liquidity of
clause 17.1. In addition he states:
‘
The Defendant’s liability
in terms of this agreement is conditional upon a finding that it was
the cause for the delay in
the registration of the transfer. This is
no simple act or event which is capable of proof by means of
affidavit evidence.’
[5] The applicant’s
argument does not challenge the correctness of the decision of this
Court in
Avtjoglou v First National Bank of
Southern Africa Ltd
2004 (2) SA 453
(SCA).
What the applicant did contend was that the order granting
provisional sentence in this case should be regarded as appealable
because it was based on a document that was clearly not liquid, which
not only has an unjust effect, but constitutes exceptional
circumstances of the kind referred to by Southwood AJA in
Smit
v Scania South Arica (Pty) Ltd
2004 (3) SA
628
(SCA) para 7:
‘
It is possible that in an
exceptional case the application of these requirements to a
provisional sentence judgment will show that
that provisional
sentence judgment is appealable.’
[6]
Smit
does
nothing more than acknowledge a theoretic possibility that an
unforeseen set of facts may arise in future that satisfies the
requirements of
Zweni
. The applicant was however, unable to
illustrate why this case is so different from other cases that it
should be regarded as constituting
exceptional circumstances.
[7] For these reasons the
application for leave to appeal was dismissed with costs.
____________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For
the Appellant: J F Steyn
Instructed
by:
J
H van Heerden & Cohen Attorneys; Springs
Bezuidenhouts
Inc, Bloemfontein
For the Respondent: P
Kennedy SC
Instructed
by:
Schalk
Britz Attorneys, Benoni
Honey
Attorneys, Bloemfontein