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2023
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[2023] ZAGPJHC 1224
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MSG Marketing (Pty) Ltd and Another v Firstrand Bank Ltd (2022/1321) [2023] ZAGPJHC 1224 (26 October 2023)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER:
2022/1321
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
26.10.23
In
the matter between:
MSG MARKETING
(PTY)LTD
First
Applicant
PROFESSIONAL
WORLDWIDE SERVICES (PTY) LTD
Second Applicant
And
FIRSTRAND
BANK LTD
Respondent
WRITTEN REASONS
(LEAVE TO APPEAL)
MSIBI
AJ
Background
[1] The applicants seek leave to
appeal against the judgment and the orders dated 30 January 2023 in
the opposed main application
in terms of which I dismissed the
applicant’s application with costs. In the main application the
applicants sought a declaratory
relief against the respondent as well
as orders directing the respondent to make payment of monies due to
the applicants. The respondent
opposes the application for leave to
appeal.
[2] The applicants have raised several
grounds of appeal, as indicated in the application for leave to
appeal. Of note is the consideration
that one of the issues the
applicants seek clarity on is the construction and interpretation of
the relevant clauses applicable
after termination of the merchant
service agreements concluded between respondent and the applicants.
Counsel argued that the merchant
agreements are standardised
agreements with the bank, affecting the public at large, therefore
the guidance of the Court of Appeal
will have an effect on future
disputes. Counsel for respondent submitted that the relevant merchant
clauses are plain worded and
have been properly interpreted by this
court.
[3] In determining whether leave to
appeal is granted,
section 17(1)
(a) (i) and (ii) of the
Superior
Courts Act 10 of 2013
provides as follows:
“
Leave to appeal may be given
where the judge or judges concerned are of the opinion that –
(i) The appeal would have a reasonable
prospects of success; or
(ii) There are some other
compelling reasons why the appeal should be heard, including
conflicting judgments on the matter
under consideration.”
[4] A key factor to be considered is
the bank’s contractual entitlement to withhold the client’s
funds after termination
of the banking relationship. This issue is
essential to the parties and it might bring legal certainty with
regard to the interpretation
of merchant agreements in this regard.
It therefore highlights the need for leave to be granted where there
is some other compelling
reason, on the basis of
section 17(1)
(b) of
the Act.
[5] Having considered the grounds of
appeal against legislative framework, I am of the view that there is
a reasonable prospect
that another court would come to a different
conclusion on the issues raised by the applicant.
[6] Due to the importance of the issue
to the banking industry and its clients alike, the applicant argued
that leave to appeal
be granted to the Supreme Court of Appeal in
accordance with
section 17(6)
(a) of the Act. Counsel for the
respondent argued that if leave is granted by this court the,
application can be heard in by a
full bench of this Division.
[7] Having considered the papers filed
on record in this matter and having heard counsel, it is ordered
that:
1. The applicant is granted leave to
appeal against the judgment and orders of this court dated 30 January
2023.
2. Leave to appeal is granted to the
full bench of this Division.
S. MSIBI
Acting Judge of the High Court
Gauteng Division, Johannesburg
Heard
:
18 October 2023
Ex
Tempore
Judgment
: 18 October 2023
Written
Reasons
: 26 October 2023
Appearances
:
For
Applicants
:
SP
Pincus SC
Instructed
by
:
Howard
S Woolf
For
Respondent
:
A
Cockrell SC
Instructed
by
:
Glover
Kannieppan Inc.