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[2022] ZAFSHC 253
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Manyoni and Gija Investments CC and Another v Carospan (Pty) Ltd t/a Nashua Bloemfontein (4213/2021) [2022] ZAFSHC 253 (18 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 4213/2021
Reportable:
NO/YES
Of
Interest to other Judges: NO/YES
Circulate
to Magistrates: NO/YES
In
the matter between:
MANYONI
AND GIJA INVESTMENTS CC
First Applicant
SIBONGISENI
SANELE NYAMBI
Second
Applicant
And
CAROSPAN
(PTY) LTD t/a NASHUA
Respondent
BLOEMFONTEIN
HEARD
ON:
This
application was
determined on the
basis of written arguments instead of an oral hearing.
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This judgment
was handed down electronically by circulation
to the parties'
representatives by way of email and by release to SAFLII. The date
and time for hand-down is deemed to be 14H00
on 18 October 2022.
[1]
The applicants seek leave to appeal the whole judgment delivered by
this court on
24 June 2022 in which Summary Judgment (“the
summary judgment application”) was granted in favour of the
respondents
with costs on attorney and client scale. This order was
based on a finding that the applicants’ pleaded defences, both
in
the plea and the opposing affidavit did not disclose a bona fide
defence that is good in law.
[1]
[2]
The application is opposed by the respondents and by agreement
between the parties,
the application is determined on the basis of
written heads of argument filed by the respective parties.
[3]
The background facts of this matter are illustrated in my main
judgment paragraphs
1 to 4, it is therefore unnecessary to repeat
them in this judgment.
[4]
In terms of section
17(1) (a) of the Superior Court Act
[2]
leave can only be granted where I’m of the opinion that the
appeal would have a reasonable prospect of success or there is
some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
There must
be a measure of certainty that another court will differ from my
judgment.
[3]
[5]
The
onus is on the
applicants
to convince this court that the issues that they raise in this
application have prospects of success on appeal
not
just a possibility of success
and that
another
court would come to a different conclusion.
[4]
[6]
It
is the applicants’ case that in its determination of whether
the applicants’ defences raised any issues for trial
the court
erred by overlooking the applicants’ other defences raised in
their heads of argument namely: the illiquidity of
the respondent’s
claims including non-compliance with the provisions of the
Conventional Penalties Act.
[5]
[7]
I’m not convinced that the issues raised by the applicants in
their grounds
of appeal and also their heads of argument meet the
stringent requirements contemplated in section
17(1) (a). In my main judgment,
paras 5 to 16 I have
adequately dealt with all the aspects raised by the applicants
in the grounds of appeal, I don’t
deem it necessary to rehash
the provisions of my main judgment in this regard except to highlight
that illiquidity of a claim is
a defence in terms of rule 32(3)(b)
[6]
therefore, in order to successfully resist summary judgment the
applicants were required to disclose
the
nature and grounds of this defence and the material facts relied upon
in their plea and their subsequent opposing affidavit
to
enable the court to make a determination as to whether the defences
raised a triable issue or not.
[8]
Similarly, the defence based on the provisions Conventional Penalties
Act should have
been disclosed fully in the plea not only in
argument.
[7]
The onus was on the
applicants to aver that clause 9 of the rental agreement is
essentially a penalty clause as provided for in
the Conventional
Penalties Act and that it is disproportionate relative to the
prejudice suffered by the respondents. Absent those
allegations, the
applicants had not complied with the provisions of rule 32 (3) (b,)
in that respect, there was no basis for granting
the applicants leave
to defend the action. See
Premier
Finance Corp (Pty) Ltd v Rotainers (Pty) Ltd.
[8]
[9]
It is for these reasons above that I hold that the
application
for leave to appeal stands to be dismissed.
[10]
In the result, the following order is made:
1.
The application for leave to appeal is
dismissed with costs.
NS
DANISO, J
For
the applicants:
Adv.
R. Naidoo
Blair
Attorneys
BLOEMFONTEIN
For
the respondents:
Adv.
A. Stander
Peyper
Attorneys
BLOEMFONTEIN
[1]
Paragraph 4 to 13 of the judgment.
[2]
Act 10 of 2013
.
[3]
Acting
National Director of Public Prosecutions & others v Democratic
Alliance
in Re:
Democratic
Alliance v
Acting National
Director of Public Prosecutions & others
(19577/09)
[2016] ZAGPPHC 489
(24 June 2016);
[2016] JOL 36123
(GP)
.
[4]
S
v Smith
2012
(1) SACR 567
(SCA) para 7.
[5]
Act No, 15 of 1962.
[6]
Botha v
W. Swanson and CO. (Pty) Ltd
1968
(2) PH
F85
(C).
[7]
Plumbago
Financial Services (PTY) LTD t/a Toshiba Rentals v Janap Joseph t/a
Project Finance
2008
(3)
SA
47
(C)
[8]
1975
(1) SA 79
(W),
page 83 to 84.