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[2023] ZAKZPHC 74
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Singh N.O and Others v ABSA Bank Limited (5034/2020P) [2023] ZAKZPHC 74 (28 July 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 5034/2020P
In
the matter between:
HEMANTH
RAJKUMAR SINGH N.O. FIRST
APPLICANT
BALAN
NAIDOO N.O. SECOND
APPLICANT
PRAVESH
RAJKUMAR SINGH N.O. THIRD
APPLICANT
HEMNATH
RAJKUMAR SINGH FOURTH
APPLICANT
and
ABSA
BANK LIMITED RESPONDENT
Coram: Mossop
J
Heard: 28
July 2023
Delivered: 28
July 2023
ORDER
The following order is
granted:
1.
The application for leave to appeal is refused with costs.
JUDGMENT
MOSSOP
J:
[1]
On 12 April 2023 I handed down judgment in this matter. In that
judgment, I
confirmed my earlier decision to refuse the respondents
leave to deliver a further answering affidavit and I granted judgment
against
the respondents, jointly and severally, the one paying the
other to be absolved, for payment of the sum of R18 039 598.59,
interest thereon at the rate of 8,25% (prime plus 1.00%) per annum
capitalised monthly from 2 June 2020 to date of payment, both
days
included and costs of suit on the scale as between attorney and
client.
[2]
The applicants now seek leave to appeal each of the orders that I
granted. This
morning, they were now represented by Mr Kissoon Singh
SC and the respondent was, as before, represented by Mr van Rooyen.
Counsel
are thanked for their or their assistance.
[3]
Section
17 of the
Superior
Courts Act, 10 of 2013
(the Act) regulates applications for leave to appeal from a decision
of a High Court. It provides 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)
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
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.'
[4]
Prior
to the enactment of the Act, the applicable test in an application
for leave to appeal was whether there were reasonable prospects
that
an appeal court may come to a different conclusion than that arrived
at by the lower court. The enactment of the Act has changed
that test
and has significantly raised the threshold for the granting of leave
to appeal.
[1]
The use of the word ‘would’ in the Act indicates that
there must be a measure of certainty that another court will
differ
from the court whose judgment is sought to be appealed against.
[5]
Leave
to appeal may thus only be granted where a court is of the opinion
that the appeal would have a reasonable prospect of success,
and
which prospects are not too remote.
[2]
As
was stated by Schippers JA in
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
:
‘
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There must
be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.’
[6]
My judgment against which
leave to appeal is sought is comprehensive and I stand by the reasons
set out therein.
I
have, however, considered the respective arguments, authorities and
submissions of both counsel in proposing and resisting the
applicant’s application for leave to appeal.
[7]
Dealing
briefly with the grounds advanced as allegedly constituting the basis
for the submission that another court may come to
a different
decision than the decision that I came to, I commence with my refusal
to allow the applicants to deliver a further
answering affidavit. The
delivery of further affidavits beyond those prescribed by Uniform
Rule 6 is a discretionary power held
by the court. Naturally, that
discretion must be judicially exercised. As I stated in the judgment,
an application to deliver a
further affidavit should only be granted
if good reasons are provided for the granting of this indulgence by
the party seeking
it.
[4]
The
question is not whether the handing up of a further affidavit will be
prejudicial to the other side. Rather the issue is whether
the party
seeking to deliver the further affidavit has established exceptional
circumstances which render it fair to permit its
acceptance.
[5]
The reason advanced for the grant of this indulgence was that the
respondents changed attorneys. I considered this reason, which
I
found to be less than compelling, and in the exercise of my
discretion refused the application. I am unpersuaded that another
court will conclude that I did not properly exercise my discretion.
[8]
The general
defence raised by the applicants to the respondent’s claim was
that they had been prejudiced in their positions
as sureties because
the respondent had advanced a loan to the principal debtor without
insisting on the passing of a general notarial
bond to the value of
R8 million over the moveable assets of the principal debtor. In
Absa
Bank Ltd v Davidson
,
[6]
the Supreme Court of Appeal considered the proposition that there is
a general principle in our law that dictates that if a creditor
does
anything in its dealings with a principal debtor that has the effect
of prejudicing a surety, the surety is entitled to claim
his full
release from his obligations. Olivier JA stated in this regard that:
‘
As
a general proposition prejudice caused to the surety can only release
the surety (whether totally or partially) if the prejudice
is the
result of a breach of some or other legal duty or obligation. The
prime sources of a creditor's rights, duties and obligations
are the
principal agreement and the deed of suretyship. If, as is the case
here, the alleged prejudice was caused by conduct falling
within the
terms of the principal agreement or the deed of suretyship,
the prejudice suffered was one which the surety undertook
to
suffer.
’
[7]
[9]
Both deeds of suretyship of application in the matter contained an
acknowledgement
by the surety that the applicant may:
‘
release in whole
or in part present or future security, including this suretyship or
the suretyship of co-sureties, in respect of
the debtor’s
obligations to the bank;’.
[10]
I therefore found that there was no breach by the respondent of any
legal duty or obligation. I do
not intend going through the other
secondary defences raised by the applicants. I dealt with each one of
them in my judgment.
[11]
After a thorough consideration of the grounds upon which leave to
appeal is sought, I remain unpersuaded
that there are reasonable
prospects that another court would come to a different conclusion
than the one to which I came.
[12]
The
purpose behind requiring litigants to obtain leave to appeal and not
simply allowing an automatic right of appeal to exist in
every matter
was considered in
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd,
[8]
where Wallis JA said that:
‘
T
he
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.’
[13]
In my view, this application for leave to appeal lacks merit.
[14]
I accordingly grant the following order:
The application for leave
to appeal is dismissed with costs.
MOSSOP
J
APPEARANCES
Counsel
for the applicants: Mr
A K Kissoon Singh SC
Instructed
by: Rakesh
Maharaj and Company
87 Mahatma Ghandi Street
KwaDukuza
Counsel
for the respondent: Mr
R M van Rooyen
Instructed
by: MCH
Attorneys Inc
Rydall Vale Park
3
Rydall Vale Crescent
La
Lucia Ridge
Date
of Hearing: 28 July 2023
Date
of Judgment: 28 July 2023
[1]
Public
Protector of South Africa v Speaker of the National Assembly and
Others
(8500/2022)
[2022] ZAWCHC 222 (3 November 2022) para 14.
[2]
Ramakatsa
and Others v African National Congress and Another
[2021]
JOL 49993
(SCA)
para [10]
[3]
MEC
for Health, Eastern Cape v Mkhitha and Another
[2016]
ZASCA 176 para 17.
[4]
Amedee
v Fidele and others
[2021]
ZAGPJHC 837 para 79.
[5]
I
mpala
Platinum Ltd v Monageng Mothiba N.O. and Oth
ers
[2016] ZALCJHB 475
.
[6]
Absa
Bank Ltd v Davidson
2000 (1) SA 1117 (SCA).
[7]
Ibid
p
ara
19.
[8]
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
2013 (6) SA 520 (SCA) para 24.