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2023
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[2023] ZAFSHC 42
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De Klerk v Nedbank Limited (5700/2021) [2023] ZAFSHC 42 (13 February 2023)
THE
HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5700/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
WILMA
SUSANNA DE
KLERK
APPELLANT
and
NEDBANK
LIMITED
RESPONDENT
CORAM:
AS BOONZAAIER AJ
HEARD
ON:
1
0 FEBRUARY 2022
DELIVERED
ON:
13 FEBRUARY 2022
INTRODUCTION
[1]
This is an application for leave to appeal against the judgment I
handed down on
22 November 2022
. The Applicant contends that
the court misdirected itself (when it granted the Summary judgment
against the First Defendant) as
follows:
(a) That the court
a
quo
erred by not finding that the plaintiff cannot rely on any
certificates of balance [“COB”] issued in terms of the
relevant
suretyships as the suretyship clause relied on is
contra
bonos mores
. Hence it is offending public policy and accordingly
unenforceable as was held in the case of
Nedbank Limited v Grant
Stewart McGlashan and 10 others (case number 14714/2016) in the High
Court of South Africa, Gauteng Local
Division.
The High Court
a
quo
furthermore erred by granting prayer 1 to 4 relating to the
surety ship while counsel on behalf of the plaintiff conceded that
the aforementioned case law constitutes an arguable defence in law
and did not pursue to request Summary judgment for the amounts
based
on the suretyships.
(b) That the court
a
quo
erred by finding that the certificates, amounts in annexure
“C1”to “C4” to the plea are correct while
there
was a valid reason to question the amounts and interest rates
claimed in the notice of application for Summary judgment. These
amounts substantially differs from the amounts and interest rates
claimed in the Plaintiff’s request for Default judgment
in
terms of Rule 31 dated 20 May 2022. In the opposing affidavit the
First Defendant gives various examples between the amounts
claimed
and the interest rates (for example paragraph 7.1 and 7.2).
(c) That the court
a
quo
erred by failing to take into account that in the affidavit
of Mr. Lemmetjies it is not indicated that the amounts sought in the
application for Summary judgment differ from the amounts sought in
the application for Summary judgment. Mr. Lemmetjies does not
provide
an explanation for these differences and how the new and lesser
amounts were calculated. For example, there is a substantial
difference of more than R817 00-00 between prayer 2 of the notice of
application for Summary judgment and the Plaintiff’s
notice for
Default judgment without a proper explanation being furnished.
(d) That the court
a
quo
erred by failing to take into account that the Plaintiff has
not furnished any information to the First Defendant or the Court
about the proceeds generated by the sale of any of the assets of the
De Klerk Familie Trust, the gross amounts realize by the sale,
the
costs charged for the auction, the commission raised by the
auctioneers or the net proceeds after the permitted default charges
were effected while such information is essential and vital to
calculate and verify the amounts outstanding.
(e)
That
the court
a quo
erred by granting prayer 6 against the First Defendant, while
the notice of application for Summary judgment prayer 6 is
only
sought against Second Defendant.
(f) That the court
a
quo
erred by failing to take into consideration that if the First
Defendant is successful with a claim under the retrenchment benefit
insurance policy it will reduce the First Defendant's liability
towards the plaintiff.
(g) That the court
a
quo
erred by finding that the Plaintiff has proved its case while
the First Defendant has shown that the Plaintiff does not have an
unanswerable case and has raised various issues fit for trial as
envisaged in the rule.
(h) That the court
a
quo
erred by granting Summary judgment where it has been shown
that the Plaintiff’s case is not unimpeachable and thereby not
allowing the First Defendant to exercise her constitutional right to
fair trial, while there were ample valid grounds advanced entitling
the First Defendant to be granted leave to defend the action.
[2]
Counsel for the Respondent is of the view that this application boils
down to essentially [4] four grounds of appeal and I agree
with him.
The grounds be as follows:
i]
That the COB clause in annexure” N7.1” to the particulars
of claim is
contra bonos mores (
as it provides for the
contents of the COB`s to be proof” on the face of it”)
;
ii]
That the certificate amounts in annexures “C1” to “C4”to
the plea substantially differs from, the amounts
and interest rates
claimed in the request for Default judgment;
iii)
That in the notice of application for Summary judgment, prayer 6 was
only
sought against the Second Defendant;
iv)
That the ostensible retrenchment benefit insurance would reduce
Applicant`s liability towards Respondent.
[3]
At the hearing of the application, I asked both Counsel to address me
on whether the Court overlooked the concession that was
made by
counsel of the Respondent where he conceded that the mentioned case
law constitutes an arguable defence. Adv for Respondent
answered that
he indeed made the concession but it was according to the case of
Nedbank
Limited v Grant Stewart Mc Glashan and 10 others.
[1]
In the
Mc
Glashan
case
the judge was playing with the words “on the face of it “and
compared it with “
prima
facie
”.
Based on that the court found that the Plaintiff cannot rely on any
certificates of balance issued in terms of the suretyship.
The
suretyship clause relied on a
contra
bonos mores
clause
and is accordingly unenforceable.
[4]
Adv for Respondent further argued that the judgment in
Mc Glashan
supra
was given by a single judge of the High Court of another
division and hence this court is not bound to follow it. To hold that
“on
the face of it” is stronger than “
prima
facie
proof” does not hold water. The judgment in
Mc
Glashan
supra
is in his view unconvincing and flimsy and
should not be followed.
[5]
With regards to the “C1” to” C4” certificates
the Applicant pleaded
that the
balances were outdated and not that it was incorrect. The new
certificates of balance which were provided pertains to new
amounts
after the return of the vehicles to the Respondent.
[6]
In casu
the Summary judgment proceedings was clearly, against
the First Defendant. Summary judgment was already granted in previous
proceedings
against the Second Defendant. Counsel for Respondent
pointed it out that the error on page 206 with regards to prayer 6 in
the
Notice of Motion is thus simply a typo and or printing error. Adv
Steenkamp for Appellant conceded that it is a technical point
at this
stage.
[7]
Both counsels conceded that the issue of
lis pendens
was
correctly decided in the judgment. Councel for Respondent pointed out
that the court correctly accepted the fact that Nedbank
denied being
an insurer because they are not registered as an insurer under the
South African Insurance Legislation. Counsel for
Applicant is of the
view that
in casu
the Appellant still has a counterclaim.
Counsel for Respondent responded that if it is true, it will have a
counterclaim against
another third party which is not a party to
these proceedings.
THE
TEST FOR LEAVE TO APPEAL
:
[8]
Leave to appeal judgment is regulated by
section 17(1)
of the
Superior Courts Act of 2013
which provides as follows:
“
Leave
to appeal may only be given where the Judge or Judges concerned are
of the opinion that- (a)(i) the appeal would have a reasonable
prospect of success; or (ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments
on
the matter under consideration; (b) the decision sought on appeal
does not fall within the ambit of
Section 16
(2) (a); and (c) where
the decision sought to be appealed against does not dispose of all
the issues in the case, the appeal would
lead to a just and prompt
resolution of the real issues between the parties”
[9]
The bar for the granting of leave to appeal has been raised by this
section. The former test that leave should be granted if
there is a
reasonable prospect of success that another Court might come to
another decision is no longer applicable. In the unreported
case of
Hans
Seuntjie Mototo v Free State Gambling and Liquor Authority
[2]
the
court said the following
:
“
There
can be no doubt that the bar for granting leave to appeal has been
raised. Previously, the test was whether there was reasonable
prospect that another court might come to a different conclusion.
Now, the word “would”, indicates a measure of certainty
that another court will differ from the court whose judgment is
sought to be appealed against
.”
[10]
The Court hearing the application must be satisfied that the appeal
would have a reasonable prospect of success.
[11]
In the matter of
Smith
v S,
[3]
the court in dealing with the
question of what
constitutes
reasonable prospects of success, stated as follows:
“
That
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts of law that a court
of
appeal could reasonably arrive at a conclusion different to that of
the trial Court. In order to succeed, therefore, the appellant
must
convince the court on proper grounds that he has prospects of success
on appeal and that those prospects are not remote but
have a
realistic chance of succeeding. More is required to be established
that there is a mere possibility of success that the
case is arguable
on appeal or that the case cannot be categorised as hopeless. There
must, in other words, be a sound, rational
basis for the conclusion
that there are prospects of success on appeal.”
[4]
[12]
Having not been persuaded by the evidence adduced by the Applicant at
the application I am not persuaded that another Court
would come to a
different conclusion and order that the Summary judgment be
dismissed. as prayed for by the Applicant.
[13]
It follows therefore that the leave to appeal application must fail.
[14]
The general rule, it is trite, is that costs follow the event. I
have no reason to deviate from the rule.
ORDER:
The
following order is made:
[15]
The application for leave to appeal is refused with costs.
S
BOONZAAIER, AJ
For
the Plaintiff:
Adv. J Benade
Chambers Bloemfontein
Instructed
by:
Symington & de Kock
169 B Nelson Mandela
drive
BLOEMFONTEIN
Counsel
for the First Defendant:
Adv MJH Steenkamp
Chambers
Bloemfontein
Instructed
by:
Badenhorst attorneys
Groenvlei
BLOEMFONTEIN
[1]
(Case number 14714/2016) in the High Court of SA, Gauteng Local
Division.
[2]
4629/2017{ZAFSHC} 8 June 2017
[3]
2012(1) SACR567 (SCA) par [7]
[4]
The
court also elaborated on the test in Ramakatsa v ANC and Others
[2021] ZASCA 31
(31
March 2021) at para [10]