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[2022] ZAFSHC 9
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Motor Hoogland Bethlehem CC and Others v Sasfin Bank Ltd and Another (3719/2020) [2022] ZAFSHC 9 (21 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case no:
3719/2020
In
the matter between:
MOTOR
HOOGLAND BETHLEHEM CC
1
st
Applicant
IGNATIUS
MICHAEL FERREIRA N.O.
2
nd
Applicant
FREDERICK
FERREIRA N.O.
3
rd
Applicant
PIETER
YZELLE MORRISON N.O.
4
th
Applicant
IGNATIUS
MICHAEL FERREIRA N.O.
5
th
Applicant
FREDERICK
FERREIRA N.O.
6
th
Applicant
PIETER
YZELLE MORRISON N.O.
7
th
Applicant
and
SASFIN
BANK LTD
1
st
Respondent
SUNLYN
(PTY) LTD
2
nd
Respondent
CORAM:
JP
DAFFUE J
HEARD
ON:
19
JANUARY 2022
DELIVERED
ON:
21 JANUARY 2022
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 14:00 on 21 JANUARY 2022.
I
INTRODUCTION
[1]
This is an application for leave to appeal to the full bench of this
division against
the whole judgment and order of Loubser J dated 4
November 2021 in terms whereof summary judgment was granted against
seven defendants,
they being the applicants in this application for
leave to appeal.
[2]
The application was allocated to me for adjudication in the absence
of Loubser J who
is on long leave.
[3]
The legal representatives for the parties agreed to a virtual
hearing. They
also filed additional heads of argument on
invitation. I do not intend to give a thorough judgment,
bearing in mind the nature
of the proceedings.
II
THE TEST IN ADJUDICATING APPLICATIONS FOR LEAVE TO APPEAL
[4]
The Superior Courts Act
[1]
raised the bar for the granting of leave to appeal
[2]
.
Section 17(1) now provides that leave to appeal may only be granted
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;…
[3]
III
LEAVE TO APPEAL IN SUMMARY JUDGMENT PROCEEDINGS
[5]
The purpose of summary judgment is clear. It enables a
plaintiff with a clear
case to obtain speedy enforcement of the claim
in a case where the defendant has no real defence. The Supreme
Court of Appeal
stipulated as follows in
Majola
v Nitro Securitisation 1 (Pty) Ltd:
[4]
“
It is necessary to
say something regarding the grant of leave to appeal in cases in
which summary judgment has been granted……
If a court
hearing an application for summary judgment is satisfied that a
defendant has no bona fide defence to a plaintiff’s
claim and
grants summary judgment as a consequence, it should be slow
thereafter to grant leave to appeal, lest it undermine the
very
purpose of the procedure.”
IV
THE REASONS FOR GRANTING SUMMARY JUDGMENT
[6]
Loubser J dealt with all relevant issues raised by the parties during
argument and
gave an extensive judgment. There is no reason to
provide any further reasons in substantiation of the order granted,
save
to mention some further aspects relating to submissions made in
the applicants’ additional heads of argument and during oral
argument.
[7]
In so far as summary judgment procedure follows upon the filing of a
defendant’s
plea, unlike in the past before the amendment of
rule 32, the plaintiff is now not only entitled, but also obliged to
comply with
the provisions of rule 32(2)(b) which reads as followed:
“
(b)
The
plaintiff shall, in the affidavit referred to in subrule (2)(a),
verify the cause of action and the amount, if any, claimed,
and
identify any point of law relied upon and the facts upon which the
plaintiff’s claim is based, and explain briefly why
the defence
as pleaded does not raise any issue for trial.”
[8]
In so far as a defendant elects to rely on an affidavit in order to
oppose a summary
judgment application, rule 32(3)(b) stipulates as
follows:
“
(b)
satisfy the court by affidavit (which shall be delivered five days
before the day on which the application is to be heard),
or with the
leave of the court by oral evidence of such defendant or of any other
person who can swear positively to the fact that
the defendant has
a
bona fide
defence
to the action; such affidavit or evidence
shall
disclose fully the nature and grounds of the defence and the material
facts relied upon therefor
.”
(emphasis added)
[9]
A defendant is not required to show that the defence is likely to
prevail, but only that the
defence is legally cognisable on the face
of it, ie that it is genuine or
bona fide
. It has always
been the case that the defendant did not need to prove the defence,
but facts – material facts and particulars
- had to be set out
in the answering affidavit which if proved at the trial would
constitute an answer to the plaintiff’s
claim. It is not
good enough to rely on vague allegations to cause suspicion.
[10]
I agree with the reasoning of Binns-Ward J in
Tumileng
Trading CC and Another v National Security and Fire (Pty) Ltd
[5]
.
Binns-Ward J went further in
Tumileng
and stated as follows:
[6]
“
However, does the
fact that the bones of a triable defence have been made out in the
plea mean that summary judgment must be refused?
The answer is
clearly 'no'! The reason for the negative answer is that the enquiry
is not whether the plea discloses 'an issue
for trial' in the literal
sense of those words, it is whether the ostensible defence that has
been pleaded is bona fide or not.
As discussed earlier, that that is
the relevant enquiry in a summary application follows from the
rule-maker's decision to leave
subrule 32(3) substantively unamended.
If one were to apply the amended rule differently, it would be
impossible to marry the requirement
of a plaintiff apparently posited
by subrule 32(2)
(b)
(viz showing that 'the defence as
pleaded does not raise any issue for trial') with what is demanded of
a defendant in terms
of subrule 32(3)
(b)
(viz showing
that its defence to the action is bona fide, ie that its ostensible
defence is not a sham). The respective supporting
and opposing
affidavits would pass each other like ships in the night if one were
to understand the notion of 'issue for trial'
in subrule 32(2)
(b)
as
denoting something different from a 'bona fide defence' within the
meaning of subrule 32(3)
(b)
.”
[11]
A defendant in summary judgment procedure must now deal with
argumentative material in the answering
affidavit and in failing to
do that, should not be surprised if the application is granted.
It is expected of a defendant
in these kind of proceedings to give
particulars of, eg alleged breach of contract by the plaintiff, or
misrepresentation or fraud
relied upon or alleged inadequate
workmanship or that specific equipment, properly identified, were not
delivered and/or that those
properly identified equipment were
defective, and in each case, the material facts relied upon for
coming to the conclusions must
be presented under oath.
[12]
In this regard it is submitted on behalf of the applicants that in so
far as the respondents were not
party to the conclusion of the
original agreements giving rise to the claim ceded to the
respondents, any failure on the part of
the applicants to further
elaborate on the nature and extent of the misrepresentations which
induced them to purchase the equipment
would presently be of no
consequence because the respondents do not have personal knowledge of
the circumstances giving rise to
the transaction originally entered
into.
[13]
I do not agree with the aforesaid submission. I am satisfied
that the applicants (defendants
in the main action) were extremely
vague and failed to deal with the argumentative material set out in
the affidavit in support
of the summary judgment application.
They failed to present the court with material facts and the nature
and grounds of the
defence were not fully disclosed.
[14]
The applicants also tried to rely on Mr Govender’s lack of
knowledge, he being the deponent to
the supporting affidavit, as to
how the purchase and installation of the equipment came about.
This aspect was fully dealt
with in
inter alia
paragraph 24 of
the judgment. The original lessor and plaintiffs in the main
action featured in the rental agreement as financing
institutions
only. They were not directly involved in the supply and
installation of the equipment. I also need to
point out that
not a single fact testified to by Mr Govender was placed in dispute
save for the applicants (defendants) denying
facts on the basis that
they did not have knowledge thereof.
[15]
The applicability of the Private Security Industry Regulation Act
[7]
and the Electronic Communications Act
[8]
was dealt with during the exception proceedings by Page AJ, but
Loubser J again dealt with that during the adjudication of the
summary judgment application. As held by Loubser J, the alleged
applicability of these two Acts does not give rise to a triable
issue. The applicants (defendants) failed to provide the court
with material facts on which such contention was based.
[16]
A full and comprehensive reading of the judgment of Loubser J will
indicate that he considered all
the defences raised, that he was
fully mindful thereof and that he properly exercised his discretion.
V
CONCLUSION
[17]
I am satisfied that the appeal would have no reasonable prospect of
success and there is also no compelling
reason why the appeal should
be heard by the full bench or any other court of appeal.
VI
ORDER
[18]
The application for leave to appeal is dismissed with costs.
J P DAFFUE J
On
behalf of the Applicants
Adv
C Van Rooyen
Instructed
by:
Ayanda
Tsikayi Attorneys
c/o
Kramer Weihmann Attorneys
Bloemfontein
On
behalf of the Respondent
Adv
S Aucamp
Instructed
by
KWA
Attorneys
c/o
Hill, McHardy & Herbst Inc
Bloemfontein
[1]
Act
10
of 2013
[2]
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others, LCC
case no 14R/2014 dated 3 November 2014 (unreported); MEC
for Health,
Eastern Cape v Mkhitha and Another
[2016] ZASCA 176
at para 17
relying on the dictum in Smith v S
2012 (1) SACR 567
(SCA) at para
7: “
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.”
[3]
Sub-sections
17(1)(a)(i) and (ii), the two sub-sections relied upon by the
applicants in
casu
[4]
2012
(1) SA 226
(SCA) at para [25]
[5]
2020
(6) SA 624
WCC at paras 17 - 28
[6]
Ibid
para
40
[7]
56
of 2001
[8]
36
van 2005