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2024
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[2024] ZAFSHC 51
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Maree and Another v Standard Bank of South Africa Limited (3372/2023) [2024] ZAFSHC 51 (22 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3372/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DEON
CORNELIUS MAREE
1
st
Applicant
JOHANNA
GERTRUIDA MAREE
2
nd
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
16 FEBRUARY
2024
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
22 FEBRUARY 2024
[1]
The applicants make application for leave to appeal against an Order
of this Court confirming a
rule nisi
issued against them with
costs on 30 June 2023 by Mhlambi, J. In terms of the
rule nisi,
notarial bonds of the applicants were perfected in favour of the
respondent, and the respondent was granted access to certain
properties
of the applicants to monitor the harvesting and sale of
their crops. In addition, the respondent was authorised to keep in
its
possession such movable property and effects, as referred to, as
a pledge and as such security for all accounts due by the applicants
to the respondents.
[2]
All the orders contained in the
rule nisi
were ordered to serve as an interim order with immediate effect
pending the finalisation of an action, application or other legal
steps to be instituted by the respondent for the payment of all
amounts due by the applicants to the respondent within 30 days
after
the finalisation of the application for perfection.
[3]
Generally, courts are reluctant to hear appeals against interim
orders that have no final effect
and that are, in any event,
susceptible to reconsideration by a court when the final relief is
determined.
[1]
This, however, is not an inflexible rule. What best serves the
interest of justice dictates whether an appeal against an
interim
order should be entertained.
[2]
[4]
As far as the interim nature of the present order of confirmation is
concerned, I am not persuaded
that it would be in the interest of
justice to grant leave to appeal at this stage, simply because the
appeal would only result
in the piecemeal appellate disposal of the
issues in question.
[3]
Since the present order does not finally dispose of any relief
claimed by the respondent, the issues will be finally adjudicated
in
the proceedings to come, and either party will then have the
right of appeal again. To grant leave now, will only offend
against
the jurisprudence of the courts, in that it would result in a
piecemeal disposal of the issues on appeal.
[5]
Secondly, a reading of the confirmation judgement of this court will
show that the focus mainly
fell on a settlement agreement that came
into being between the parties on 3
rd
August 2023. In this
agreement, duly signed by the parties, the two applicants acknowledge
that they were in default in relation
to a large number of accounts
held with the respondent, and further acknowledged that they are
lawfully, jointly and severally
indebted to and in favour of the
respondent as principal debtor and sureties/guarantors in the amounts
and interest thereon as
stipulated in the settlement agreement. In
clause 5.1 of the agreement the applicants undertook to settle the
full outstanding
balances within 4 months, and in clause 5.2.2 it is
recorded that the parties consent thereto that the
rule nisi
can be confirmed on 3
rd
August 2023, the then return date
of the
rule nisi
.
[6]
This settlement agreement was signed by the applicants approximately
one month after the order
of Mhlambi, J containing the
rule nisi
was served upon them. They were therefore fully aware of what was at
stake when they signed the settlement agreement. Notwithstanding,
the
applicants later alleged in their answering affidavit that they have
entered into the agreement under duress and that they
were forced to
sign it.
[7]
In this respect this Court found that the proposal which eventually
culminated in the settlement
agreement, came from the applicants
themselves and their attorney at the time. This Court consequently
found that there was no
merit in the contentions of the applicants
that they have signed under duress. The agreement was found to be
valid and binding
upon the parties. The Court came to the conclusion
on the facts of the matter and on the law applicable to those facts.
[8]
Section 17(1)(a) of the Superior Court
Act
[4]
provides that leave to appeal may only be granted where the appeal
would have a reasonable prospect of success or where there is
some
other compelling reason why the appeal should be heard. In
Ramakatsa
and Others v African National Congress and Others
[5]
the Supreme Court of Appeal indicated that compelling reasons to
entertain an appeal would include an important question of law
or a
discreet issue of public importance that will have an effect on
future disputes.
[9]
In the present matter, I am of the view that
there is no reasonable prospect of success that another
court would
find that the settlement agreement was signed by the applicants under
duress and that they were forced to sign it.
Furthermore, the appeal
would certainly not involve an issue of public importance that will
have an effect on future disputes.
[10]
In the premises, the following order is made:
1.
The application for leave to appeal is dismissed with costs.
P.
J. LOUBSER, J
For
the applicants:
Adv.
D. van Loggerenberg SC with him
Adv.
N Muller
Instructed
by:
Arnoud
van den Bout Attorneys, Pretoria
c/o
Blignaut Attorneys, Bloemfontein
For
the first respondent:
Adv.
P. Zietsman SC
Instructed
by:
Phatshoane
Henney Attorneys
Bloemfontein
/roosthuizen
[1]
National
Treasury and Others v Opposition to Urban Tolling Alliance 2012(6)
SA 223 (CC), par 24.
[2]
Ibid
par 25, also Economic Freedom Fighters v Gordhan 2020(6) SA 325 (CC)
at para 50.
[3]
Cilliers
N.O. and Others v Ellis
[2017] ZASCA 13
at paras 11 to 19.
[4]
Act 10
of 2013.
[5]
[2021]
ZASCA 31.