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[2022] ZAFSHC 168
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Johannes Jacobus Erasmus N.O and Others v Stefanus Johannes Nel Van Rensburg N.O and Others (3692/2020) [2022] ZAFSHC 168 (4 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Application
no
.
3692/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JOHANNES
JACOBUS ERASMUS N.O.
1st
Applicant/Defendant
[In
his capacity as Trustee of the
WHITELINEN
LAUNDRY
TRUST –[….]
GERHARD
ALBERTUS VAN RHYN N.O.
2nd
Applicant/Defendant
[In
his capacity as Trustee of the
WHITELINEN
LAUNDRY
TRUST – [….]
JOHANNES
JACOBUS ERASMUS
3rd
Applicant/Defendant
[Identity
number:
[….]
GERHARD
ALBERTUS VAN RHYN
4th
Applicant/Defendant
[Identity
number:
[….]
And
STEFANUS
JOHANNES NEL VAN RENSBURG N.O.
1st
Respondent/Plaintiff
[In
his capacity as Trustee of the
LOURIELLA
TRUST
– [….]
MARGARETHA
ALETTA NOTLEY N.O.
2nd Respondent/Plaintiff
[In
her capacity as Trustee of the
LOURIELLA
TRUST
– [….]
ZANIA
HARTMAN N.O.
3rd
Respondent/Plaintiff
[In
her capacity as Trustee of the
LOURIELLA
TRUST
– [….]
JUDGMENT
LEAVE TO APPEAL
JUDGMENT
BY:
DE KOCK, AJ
HEARD
ON:
HEADS
OF ARGUMENT FILED IN TERMS OF RULE 16.5 OF THE FREE STATE PRACTICE
RULES
DELIVERED:
This
Judgment was handed down electronically by circulation to the
parties’ representatives by e-mail and released to SAFLII.
The date and time for handing down is deemed to be 13h00 on 4 July
2022.
INTRODUCTION:
[1]
The Applicants applied in the Court
a quo
for the rescission
of the Judgment granted by this Court on 15 July 2021 in favour of
the Respondents and for condonation for the
late filing of the
application for rescission of judgment. On 28 April 2022 I
dismissed Applicants’ application for
condonation for the late
filing of their application for rescission of judgment and
accordingly the application for rescission
of judgment was evenly
dismissed.
[2]
This is an application for leave to appeal against my judgment dated
the 28 April
2021. The Applicants’ grounds for leave to
appeal are set out in detail in their Notice of application for leave
to
appeal and need not be restated here.
[3]
In the Applicants’ Heads of Argument it is for the first time
submitted on behalf
of the Applicants that the Respondents do not
have the necessary
locus standi
to have brought the action.
The Applicants also for the first time raised a second new ground in
their Heads of Argument that
the order of my brother Justice Mhlambi
refers only to “
Defendant
” instead of
“
Defendants
”.
[4]
I do not intend repeating the arguments advanced in support of the
application for
leave to appeal. I have considered all the
grounds as well as the submissions in support thereof. I have
once again
considered the Heads of Argument filed in the application
for condonation and rescission of judgment.
APPLICABLE
LEGAL PRINCIPLES:
[5]
In an unreported Judgment of
De Mont Chevaux Trust v Tina Goosen
2014 JDR 2325 LCC
Bertelsmann, J held that:
“
It is
clear that the threshold for granting leave to appeal against the
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 … 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.
”
[6]
De Mont Chevaux
-decision was cited with approval in the matter
of
Matoto v Free State Gambling and Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
where Daffue, J said:
“
There
can be no doubt that the bar for granting leave to appeal has been
raised. Previously, the test was whether there was a reasonable
prospect that another court might come to a different conclusion.
Now, the use of the word “would” indicates a measure
of
certainty that another court will differ from the court whose
judgement is sought to be appealed against. The use by the
legislator of the word ‘only’ (emphasized supra) is a
further indication of a more stringent test.
”
[7]
In
Smith v S
2012 (1) SACR 567
(SCA)
, the Court dealt with the
question of what constitute reasonable prospects of success and
stated as follows:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a Court
of Appeal could reasonably arise at the conclusion different to that
of the Trial Court. In order to succeed, therefore the
Appellant must convince this Court on proper grounds that he has
prospects of success on appeal and that those prospects are not
remote but have a realistic chance of succeeding. More is
required to be established than that there is a mere possibility
of
success, that the case is arguable on appeal or that the case cannot
be categorized as hopeless. There must in other words,
be a
sound, rational basis for the conclusion that there are prospects of
success on appeal.
”
[8]
In
Workmen’s Compensation Commissioner v Crawford
1987 (1)
SA 296
(A)
, it was held that the Court may consider any point
which is not covered by the grounds of appeal only if the issues
involved is
a pure question of law covered by the pleadings and
turning on facts which had been fully canvassed.
ANALYSIS:
[9]
I am not persuaded that another Court would find that the Applicants
provided a reasonable
explanation for condonation or a reasonable
explanation for their default in defending the action.
[10]
I am evenly not persuaded that another Court would find that the
Applicants raised a
bona fide
defence or defences and that the
Applicants have a reasonable prospect of success if the Judgment is
rescinded.
[11]
I am not persuaded that another Court would come to a different
conclusion especially regarding
the issue that the transaction was a
going concern.
[12]
I am in particular not persuaded that another Court would come to
different findings on the following
issues that support the
contention that the property in question was sold as a going concern:
12.1
that Jose Carlos da Cruz Nunes represented the Seller in the sale
agreement of the property and evenly represented
the Carlos Nunes CC
and that the duel representation is in accordance with Clause 4.4 of
the Sale Agreement.
12.2
that the mere existence of Clause 4.4 of the Sale Agreement which
states that the Respondents shall obtain
occupation of the property
“
subject to the tenant’s rights
” is
indicative and dispositive of the fact that the Seller and the
Respondents agreed that the Applicants would remain in
occupation of
the property post-transfer and that Mr Nunes facilitated the
Respondent in becoming the landlord.
12.3
the essence of Applicants’ contention regarding the
Respondents’ acquisition of rights as the
landlord is that it
was not alleged in the particulars of claim that “
amounts
that the summons was issued for were ceded to the Respondents.
”
12.4
the property sold in terms of the Deed of Sale is the same property
which was leased by the Applicants.
The Applicants entered into
a Lease Agreement on 17 November 2015. The Respondents
purchased the property in September 2016.
In paragraph
6.8 of the Applicants’ founding affidavit in the application
for rescission of judgment it is stated that:
“
It
further needs to be noted that the leased premises was sold to the
Plaintiff and the building was transferred into the name of
the
Plaintiff.
”
[13]
the Applicants on their own version only vacated the property during
June 2019. The Applicants
did not advance any evidence in their
application for rescission of judgment that they did not regard the
Respondents as the landlord
for the period from September 2017 to
June 2019 or that they had paid rental to any person or entity other
than the Respondents.
[14]
it was common cause in the Court
a quo
that the amount which
the Respondents claimed constitutes an amount which accrued after the
date of transfer of the property.
It was never advanced by the
Applicants that the Respondents was not the Lessor of the property.
[15]
The following grounds are also raised in support of the application
for leave to appeal:
15.1
That I erred in not considering the requirements needed in a contract
to make a transaction qualify as a
going concern.
15.2
That I erred in not finding that it is not even mentioned in the Deed
of Sale that the transaction is a going
concern.
15.3
That I erred in not considering the requirements by SARS to make a
transaction qualify as a going concern.
[16]
The above grounds are now raised for the first time and for the first
time the Applicants take
issue with the
facta probantia
which
formed the basis for the existence of the sale as a going concern
whilst such sale was never disputed in the Court
a quo
.
For the latter reasons I did not err.
[17]
With due regard to the matter of
Workmen’s Compensation
Commissioner v Crawford supra
, I am of the view that the points
raised in the Applicants’ Heads of Argument for the first time
are not purely points of
law and cannot be raised at this stage/
17.1
I am in any event of the view that the Applicants’ contention
is not an outright denial of the Respondents’
locus standi
but a denial that the Respondents’
locus standi
was
properly pleaded in the particulars of claim and thus renders the
particulars of claim excipiable. It is trite that a
defence of
excipiability is an objection to a pleading and does not constitute a
defence to the merits as was correctly conceded
by counsel for the
Applicants during argument in the Court
a quo
.
17.2
Furthermore the second attempt at a defence raised in the Heads of
Argument that my brother Justice Mhlambi
only referred to “
Defendant
”
and not “
Defendants
” evenly does not constitute a
defence to the merits and can in terms of the rules be rectified by
the Court.
[18]
I am therefore of the considered view that the application is without
merit and that the Applicants
do not have reasonable prospects of
success on appeal.
ORDER:
[19]
I accordingly make the following order:
1.
The application for leave to appeal is
dismissed with costs.
DE
KOCK, A.J.
Appearances
on behalf of the Applicants:
Counsel
- Advocate
FG Janse van Rensburg
Instructed
by SJ
van Biljon, JG Kriek & Cloete Attorneys,
Sowden Manors,
Sowden Street 9(b)3, Waverley, Bloemfontein.
vanbiljonsj@gmail.com
Appearance
on behalf of Respondents
:
Counsel
-
Advocate
R van der Merwe
Instructed
by DB
Muller, Attorney for Respondents, Kramer Weihmann
Incorporated, 24
Barnes Street, Westdene, Bloemfontein.
evelyn@kwinc.co.za
,
johanette@mullergonsior.co.za