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2023
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[2023] ZAFSHC 130
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Standard Bank of South Africa Ltd v Wolmarans N.O and Others (3949/2021) [2023] ZAFSHC 130 (17 April 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION BLOEMFONTEIN
Case
no.: 3949/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
(Reg.
no:19[....]06) Applicant/Respondent
and
CHRISTOFFEL
PETRUS WOLMARANS N.O
. 1st
Respondent/Applicant
EMERENTIA
WOLMARANS N O.
2nd
Respondent/Applicant
TELLA
HARRIS N.O.
3rd
Respondent/Applicant
VANWYK
WOLMARANS N.O.
4th
Respondent/Applicant
(First
to Fourth Respondents in their
capacity
as duly authorised trustees of the
WOLMARANS
KINDER TRUST, IT 9[....]8)
CHRISTOFFEL
PETRUS WOLMARANS
5th
Respondent/Applicant
(Identity
number: 5[....]1)
EMERENTIA
WOLMARANS
6th
Respondent/Applicant
(Identity
number: 5[....]7)
CORAM: VANZYL,
J
HEARD
ON: 17
OCTOBER 2022
DELIVERED
ON: 17
APRIL 2023
[1]
This is an application for leave to appeal by the first to sixth
respondents against the whole of the judgment
and order of Daffue, J
delivered against the respondents on 16 May 2022.
[2]
This application was allocated to me on the basis of the provisions
of section 17(2)(a) of the Superior Courts
Act, 10 of 2013 ("the
Act"), in terms whereof an application for leave to appeal may
be heard by any other judge of the
Division when the judge against
whose decision the appeal is to be made, is not readily available. At
the time of the hearing of
the present application, Daffue, J was
acting in the Supreme Court of Appeal.
[3]
Section 17(1)(a) of the Act determines as follows:
"1. 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)
[4]
In the judgment of
Acting National Director of Public
Prosecutions v Democratic Alliance In Re Democratic Alliance v Acting
National Director of Public
Prosecutions
(19577/09) [2016]
ZAGPPHZ 489 (24 June 2016) the court held at para [25] of the
judgment that the Act has raised the bar for granting
leave to appeal
and in this regard it referred to the judgment of
The Mont
Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
2014
JDR 2325 (LCC), in which judgment the court held as follows at para
[6]:
"It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new
Act. The former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different
conclusion, see Van Heerden v
Cronwriqht & Others
1985 (2) SA 342
(T) at 343H. The use of the
word 'would' in the new statute indicates a measure of certainty that
another court will differ from
the court whose judgment is sought to
be appealed against."
See
also
Njango v S
(06/2016)
[2018] ZAFSHC 17
(27 February
2018) at paras [7] - [8] and Rohde v S
2020 (1) SACR 329
(SCA) at
para [8].
[5]
With regard to the test of "reasonable prospects of success"
the well-known dictum in S v Smith
2012 (1) SACR 567 (SCA) at para
[7] is still applicable.
[6]
I will refer to the parties as in the main application.
[7]
In the main application the applicant applied for judgment against
the respondents for payment due in terms
of three accounts, as well
as orders in terms whereof several immovable properties be declared
especially executable, based on
settlement agreements concluded
between the parties, which had previously been made orders of court.
[8]
The Respondents opposed the main application and also filed a counter
application in terms whereof they sought
the dismissal of the main
application, in the alternative they, inter a/ia, sought the
following relief:
1. Declaring
both settlement agreements void by virtue of the provisions of
section 89, read with sections 90 and 164
of the National Credit Act,
34 of 2005 ("the NCA").
2. In the
alternative, declaring those provisions of the settlement agreements
that offend section 90 of the NCA as
void.
3. In the
further alternative, declaring that the settlement agreements are
reckless and setting aside all or part of
the respondents' rights and
obligations under the settlement agreements in terms of section 83 of
the NCA, alternatively, an order
in terms of section 83(3) of the
NCA.
4. Setting
aside of the two court orders premised upon the first and second
settlement agreements.
[9]
The grounds of appeal as set out in the first to sixth respondents'
notice of application for leave to appeal
are lengthy and detailed.
It was very thoroughly drafted setting out the findings of the court
which underpinned and/or influenced
the judgment and order and
beneath every finding the reasons upon which the respondents base
their submission that the court erred.
I do not consider it apposite
to repeat all of the aforesaid herein. However, in order to get an
impression of the nature of the
proposed appeal, I will, set out the
findings made by the court a quo against which the proposed appeal
will be directed, as recorded
in the notice of application for leave
to appeal, as well as a few of the reasons therefore advanced by the
respondents:
"3.
THE
TWO SETTLEMENT. AGREEMENTS ARE LAWULL, NOT SUBJECTED TO THE NCA AND
ACCORDINGLY NOT TO BE SET ASIDE:
The
court should have found that the settlement agreements are unlawful
and void and thus to be set aside alternatively, if not
void in toto,
that they, alternatively, the remainder of the provisions not set
aside, are subjected to the provisions of the NCA.
3.1 In regard
to the fifth respondent's underlying credit facility regulated by the
NCA the court erred by:
3.1.1 not finding
that these settlement agreements constitute supplementary agreements
and are accordingly unlawful in terms
of s89(c);
3.1.2 not finding
that the settlement agreements are, by virtue of the provisions of
ss89(2)(c), 91(2) and 90, read with the
applicable provisions of the
NCA, unlawful;
…
4.
THE
JUDGMENTS BY DEFAULT ISSUED ON THE BACK OF THE TWO SETTLEMENT
AGREEMENTS ARE IN ORDER AND THERE EXISTS NO REASON FOR THE RESCISSION
THEREOF:
The
court should have found that, on account of the unlawful settlement
agreements read with the Respondents' evidence and submissions
pertaining to the non-existence of a lawful causa, non-compliance of
a due and proper process and also unfulfilled contractual
provisions,
that the judgments given on the back of the settlement agreements
should be rescinded, inter alia,
…
5.
THAT
PRECEDENCE BE GIVEN TO THE SETTLEMENT OF DISPUTES BETWEEN PARTIES
EVEN AT THE COSTS OF PART D OF CHAPTER 5 OF THE NCA:
5.1 In the
context of the judgment as a whole, as well as the reference to the
Ratlou-decision, the court erred by having
implied that ultimate
preference to the settlement of disputes is to be given even if the
regulatory process provided for by legislation
is to be disregarded:
This conclusion is incorrect by virtue of the provisions of part E of
Chapter 5, which, as a matter of law,
firstly facilitates alterations
to credit agreements such as the facility agreement concluded by the
fifth respondent and, secondly,
could have been applied in the
current matter without having stood in the way of a lawful
settlement.
…
6.
THE
DEFENCES OF THE SURETIES: THE APPLICATION AND INTERPRETATION OF
S8(4)1 READ WITH THE MOSTERT- AND CARL BECK ESTATES DECISIONS:
6.1 The court
erred by not holding that, taking into account the fact that the
underlining credit facility of the fifth
respondent is regulated by
the NCA, the sureties are entitled to rely upon all the defences
(excluding personal defences) that
the fifth respondent was entitled
to have relied upon.
…
7.
THAT
THE NCA IS NOT APPLICABLE IN CASU:
7.1 ... It
could never have been the legislature's intention to allow credit
providers, unscrupulous or not, by the
mere conclusion of a so
called settlement agreement - that is, by the stroke of a pen -
escape the tentacles of the NCA.
…
8.
APPLPICATION
AND IMPLEMENTATION OF THE PLASCON-EVANS RULE
:
The
court should have applied this rule even-handedly and not only in a
way favouring the applicant, by inter alia:
…
9.
THE
REJECTION OF THE EVIDENCE ADVANCED BY THE RESPONDENTS AND THE
ACCEPTANCE OF THE APLPICANT'S EVIDENCE:
…
10.
THE
REJECTION OF THE REMAINDER OF THE COUNTER APPLICATIONS:
…
11.
BIASNESS
AND HOSTILITY OF COURT:
…
12.
THE
COURT'S DISREGARD OF THE FAILURE BY THE APPLICANT TO HAVE APPLIED THE
PROCEDURES REQUIRED BY SECTIONS 129 AND 130 OF THE NCA:
…
"
[10]
I have thoroughly considered the main application and thee counter
application, the parties' respective heads of argument
filed therein,
the notice of application for leave to appeal and the judgment of
Daffue, J. In addition, counsel thoroughly addressed
me on the merits
of the application for leave to appeal during the hearing thereof. Mr
Snellenburg, SC appeared on behalf of the
respondents, who are the
applicants in the application for leave to appeal, and Mr (P)
Zietsman SC, assisted by Mr Els, appeared
on behalf of the applicant,
who is the respondent in the application for leave to appeal.
[11]
The crux of the judgment turns on the interpretation of certain
sections of the NCA, read in conjunction with certain
applicable case
law. In the process it pertinently dealt with the question whether
the two settlement agreements are subject to
the provisions of the
NCA, or not. In the process the court also dealt with the question
whether, in an instance where the underlying
facility is regulated by
the NCA, a subsequent settlement agreement constitutes a
supplementary agreement in terms of the NCA.
[12]
I presided over an application similar to the present main
application and counter-application. Although there may be
factual
differences in respect of certain aspects between the application I
dealt with and the present application, which may impact
upon the
relevant questions of law, I had to make similar determinations with
regard to the interpretation of the NCA. I delivered
judgment in the
matter of Serfontein and 1 Other v Absa Bank Ltd and 3 Others,
application number 4659 /2021, which judgment was
delivered on 22
March 2023. My. most important findings therein contradict the
findings made by Daffue, Jin casu.
[13]
I am of the opinion that the proposed appeal has a reasonable
prospect of success and furthermore that the aforesaid
Serfontein-judgment and the judgment in casu, in my view, constitute
"conflicting judgments of the matter under consideration''
as
determined in section 17(1)(a)(ii) of the Act. I am consequently of
the opinion that in addition to the prospects of success,
there is a
compelling reason why the appeal should be heard.
[14]
In terms of section 16(1)(a)(i) of the Act the proposed appeal lies
either to the Supreme Court of Appeal or a full court
of this
Division, depending on the direction issued in terms of section
17(6). Section 17(6)(a) of the Act determines the following:
(6)
(a) If leave is granted under subsection (2) (a) or (b) to appeal
against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges granting leave must
direct that the appeal be heard by a full court of that Division,
unless they consider-
(i) that the
decision to be appealed involves a question of law of importance,
whether because of its general application
or otherwise, or in
respect of which a decision of the Supreme Court of Appeal is
required to resolve differences of opinion; or
(ii) that the
administration of justice, either generally or in the particular
case, requires consideration by the Supreme
Court of Appeal of the
decision, in which case they must direct that the appeal be heard by
the Supreme Court of Appeal."
[15]
Mr Snellenburg submitted and requested that leave to appeal to the
Supreme Court of Appeal should be granted. Mr Zietsman,
on the other
hand, submitted and requested that should leave to appeal be granted,
such leave is to be granted to appeal to the
full court of this
Division.
[16]
In my view the questions of law involved in the proposed appeal are
of utmost importance because of its general application
and that the
administration of justice, generally, requires consideration of the
judgment in casu by the Supreme Court of Appeal.
[17]
Mr Zietsman submitted and that should I grant leave to appeal, it
should only be in relation to paragraph 1.1 of the
order and not
include paragraphs 1.2 and 1.3 of the order. I, however, agree with
the submission of Mr Snellenburg that the facts
are entwined and that
it will consequently not be apposite to grant leave to appeal only on
part of the order.
[18]
With regard to the costs of this application for leave to appeal,
there is no reason why the usual order that costs be
costs in the
appeal, should not be ordered.
Order:
1.
The applicants in the application for leave to appeal/the respondents
in the main application are granted
leave to appeal to the Supreme
Court of Appeal against the whole of the judgment and order of
Daffue, J delivered on 16 May 2022.
2.
The costs of the application for leave to appeal are costs in the
appeal.
C.
VAN ZYL, J
On
behalf of the applicants
in
the leave to appeal/the respondents
in
the main application: Adv.
N. Snellenburg
SC
Instructed
by: Blair
Attorneys
BLOEMFONTEIN
On
behalf of the respondent
in
the leave to appeal/the applicant
in
the main application: Adv.
P. Zietsman SC
Assisted
by: Adv.
J. Els
Instructed
by: Phatshoane
Henney Inc
BLOEMFONTEIN