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[2023] ZAECMKHC 9
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Lombard v Biggs (Leave to Appeal) (858/2019) [2023] ZAECMKHC 9 (31 January 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 858/2019
In
the matter between:
WENTZEL
LOMBARD
Defendant / Applicant
And
WILLIAM
BIGGS
Plaintiff / Respondent
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
BESHE
J:
[1]
In a judgment that was delivered
on 12 May 2022, I found in favour of the respondent. The
applicant
was ordered to pay to the respondent a sum of R726 485.82
together with interest thereon. The applicant is now seeking
leave to
appeal against the said judgment.
[2]
The parties will be referred to
as they were during the trial.
[3]
In my judgment I found
inter
alia
,
that even though according to defendant’s pleaded case, Cape
Mohair and Wool is the entity that bought the goats in question
and
that he did not conclude an agreement with the plaintiff, that
defendant did conclude the agreement in question with the plaintiff.
I also made a finding that the agreement concerned was, even though
the payment was deferred to a later date, did not constitute
an
incidental credit agreement as provided for in the
National
Credit Act
.
[1]
The upshot of this finding was that the plaintiff was not obliged to
comply with
Sections
86 (10), 129
and
or
130
of the
said act.
[4]
The application for leave to
appeal is premised mainly on the ground that the plaintiff
having
been bound by his pleadings, or in another words his case having had
to be determined on his pleadings, I misdirected myself
in not taking
into account that the document marked Annexure B is proof that the
agreement in question was an incidental credit
agreement. And that
plaintiff’s pleaded case is grounded Annexure B the
authenticity of which was confirmed by the plaintiff
in a
Rule 37
minute. I had taken the liberty to reproduce Annexure B in my
judgment, I do not intend reproducing the whole document again.
[5]
For the assertion that the
agreement concerned was incidental credit agreement, reliance
is
placed on the part of the document which reads as follows:
“
Rente
op onbetaalde bedrae, na die ooreengekomde datum van betaling sal
gehef word en dan teen ‘n koers deur Verkoper verkie,
rente
maandelikse saamgestel. Geen rente sal voor … … …
… … op die uitstaande bedrag gehef word
nie.”
[6]
In his evidence, plaintiff
stated that at no stage did he discuss the question of interest
with
defendant. In my understanding, that he will be required to pay
interest should payment not be made on the agreed date. In
the
absence of any evidence to gainsay plaintiff’s evidence in this
regard, I was satisfied on a balance of probabilities
that there was
never a discussion about interest should payment not be forthcoming
on the agreed date being the 15 May 2018. And
that the discussion or
suggestion came months later when defendant failed to make good on
his promise to pay on dates subsequent
to 15 May 2018. Only in
November was this discussion had. This in my view is also borne out
by the spaces that were left uncompleted
in the clause in question
relating to the payment of interest (Annexure B
supra
).
[7]
I remain unpersuaded that there
are reasonable prospects of another court finding that
the agreement
in question was an incidental credit agreement.
[8]
Accordingly, the application for
leave to appeal is dismissed with costs.
N G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Defendant/Applicant
:Adv: S. H. Cole SC
Instructed
by
: NOLTE
SMIT ATTORNEY
115A High Street
GRAHAMSTOWN
Ref: Mr. Frans Smit /
Michelle
Tel.: 046 – 622
7209
For
the Plaintiff /Respondent :
Adv: D. H. De la Harpe SC
Instructed
by
:
NETTELTONS ATTORNEYS
118A High Street
GRAHAMSTOWN
Ref: Mr. Hart / Liza
Tel.: 046 – 622
7149
Date
Heard
:
25
January 2023
Date
Reserved
: 25
January 2023
Date
Delivered
: 31
January 2023
[1]
Act
number 32 of 2005.