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[2021] ZAGPPHC 406
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Nipro Medical South Africa (Pty) Ltd v Edison Renal and Dialysis Centre (Pty) Ltd (8444/2020) [2021] ZAGPPHC 406 (10 June 2021)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case
Number: 8444/2020
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:10/06/2021
In the matter between:
NIPRO
MEDICAL SOUTH AFRICA (PTY) LTD
Plaintiff/ Applicant
and
EDISON
RENAL AND DIALYSIS
CENTRE
(PTY)
LTD
Defendant/Respondent
JUDGMENT
:
APPLICATION
FOR LEAVE TO APPEAL
MNYOVU,
A J:
[1]
The applicant in the application for leave to appeal is the
respondent and the respondent
is the applicant in the original main
application. For ease of reference, the parties are referred to as
per the main application.
[2]
The respondent seeks leave to appeal the whole order of this court
handed down on 05 February
2021. Leave to appeal is sought to the
Full Court of this Division on the grounds embodied in the notice of
motion of application
for leave to appeal.
[3]
Leave to appeal is sought in terms of section 17(1) (a) (i) of the
Superior Court’s
Act
[1]
(Superior Courts Act) which provides that leave to appeal may only be
granted where the Judge or Judges concerned are of the opinion
that
the appeal have a reasonable prospect of success. As to the section
17(1) (a) (i) test in the
Mont
Chevaux Trust (IT 2012/2) v Tina
Goose
&
Others,
the
Land Claims Court, per Bertelsman J outlined
how
the
Superior
Courts
Act
has
raised
the
bar
for
granting
leave
to
appeal-
“
It is clear that
the threshold for granting leave to appeal against a judgement 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, see
Van
Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at 343 H.
The
use of the word “would”
in the new statute indicates a measure of certainty that another
court will differ from the
court whose judgement
is
sought to be appealed against
[2]
.
[4]
As such, in considering the application for leave to appeal, it is
crucial for this
Court to remain cognizant of the higher threshold
that needs to be met before leave to appeal maybe granted. There must
exist more
than just a mere possibility that another court will not
might, find differently on both facts and law. It is against this
background
that I consider the most pivotal grounds of appeal. I am
to consider whether there is substance in the arguments advanced by
the
respondent that would justify leave to appeal.
[5]
The matter was heard on 05 February 2021 in an unopposed motion
court.
The respondent has filed the opposing papers on 23 December
2020, the respondent was in default of appearance on 5 February 2021,
the court considered the matter on the merits before it, in the
absence of the defendant. After hearing and debated certain aspects
of the matter with the counsel of the applicant and having read the
papers filed on caselines. I granted the draft order marked
“X”.
[6]
On 26 February 2021 the respondent filed application for judgement
reasons for
orders granted against defendant on 5 February 2021
followed by the application for leave to appeal
[7]
I filed the judgement reasons and the applicant filed its opposition
for leave to
appeal on the basis that a proper case was made out for
summary judgement and the relief prayed for in the order.
[8]
On 02 June 2021 during hearing of the leave to appeal Counsel for the
Respondent submitted that the court erred by granting summary
judgement against the respondent in that the defendant disclosed
bona
fide
defences in its opposing affidavit to the plaintiff’s
application for summary judgement and jurisdictional prescripts for
an order granting summary judgement were therefore not present. The
defendant’s
bona fide
defences were
inter alia
that:
8.1
No Acknowledgment of debt between the parties, the defendant was
under impression that
there was a further new acknowledgement of debt
to be signed by the parties.
8.2
Defendant is not liable to an amount of R 2 665 425 68 whilst it is
common cause
on the papers that the defendant made payment of R250
000.00 to the plaintiff on 06 July 2020 which had to be deducted from
this
claim,
8.3
The plaintiff falsely represented to the defendant that should they
pay R250 000 and
place an order of the machines, the old
acknowledgment of debt would be replaced by the new one, and the
summons will be suspended.
Under that assumption the defendant made
the payment of R250 000 to the plaintiff.
8.4
The plaintiff placed the defendant under the above false pretence to
obtain Judgement,
unknowingly, and to cause the defendant damages,
the above misrepresentation constitutes fraud and that a
non-variation clause
is therefore not applicable.
8.5
As such the acknowledgement of debt is not enforceable against the
defendant, is no longer
competent in either fact or in law.
8.6
The plaintiff has deliberately misled the defendant’s banking
institution causing
defendant’s damages to a loss of R300 000
per month.
8 7
The defendant has counterclaim against plaintiff based on defamation
and infringements
of its constitutional right to the sum of R1 000
000.
8.8
The plaintiff’s conduct of repossessing the goods is
unconstitutional and is
inconsistent with Sec 10 of the Constitution
which gives right to dignity and Section 22 of the Constitution which
gives right
to freedom of trade, defendant was misled by the
plaintiff, and the plaintiff caused damage to unfairly destroying
defendant’s
business whilst the issues had not been tried, and
therefore defendant is entitled to be released from the
acknowledgement of debt.
[9]
In the premises the applicant had not made out proper case in either
fact or
in law for summary judgement, the respondent has clearly
established triable issues that can be decided in summary judgement.
Applicant’s
application for summary judgement against the
respondent should have been dismissed, the defendant be granted leave
to defendant
and the plaintiff be ordered to pay defendant’s
costs.
[10]
The respondent contended that the applicant is not entitled to an
order for cancellation
of agreement, an order to return of any goods,
payment of R2 665 425, 68, interest, or a writ of execution and
costs, alternatively
costs as between attorney and client.
[11]
With regard to leave to appeal, the respondent submitted that the
appeal would have a reasonable
prospects of success and there are
compelling reasons why the appeal should be heard, including
conflicting judgements on the matter
under the consideration.
[12]
Counsel for the Applicant submitted that, respondent’s
alleged
bona fide defences are baseless, and delaying the process by
referring to the defences to the plea, defendant failed to
disclose
fully the nature of his defence in the plea, but pleading bare
denials except to the three payments made to the plaintiff,
there are
no triable issues nor does have any defences raised in the affidavit
resisting summary judgement by the defendant.
[13]
Counsel further submitted that there was no further agreement that
was concluded between the parties,
nor was there a new
acknowledgement of debt, the whole agreement of acknowledgment of
debt still stands, plaintiff has proven that
the defendant has
beached the acknowledgement of debt which breach is not denied by the
defendant, therefore the plaintiff is entitled
to cancel the
acknowledgement of debt.
Plaintiff denies
receiving payment of R250 000 00 from the defendant, Defendant’s
assumptions are not material facts, not
sufficient, and not proven.
Non -variation of fraud does not apply in this matter. There is no
counter claim that was filed by
the defendant to the plaintiff.
[14]
In the premises, it is submitted that there is no reasonable prospect
that another court would find
for the defendant. The plaintiff moves
for the order dismissing the application for leave to appeal with
costs.
[15]
Having heard the arguments and debated the same, I have considered
the following: in terms of Rule
32 the purpose of summary judgement
is to assist a plaintiff where a defendant who cannot set up a
bona
fide
defence or raise an issue to be tried, enters appearance
simply to delay the judgement, and also considered whether the
defendant
has established triable issues in its affidavit resisting
summary judgement.
[16]
I have come to the conclusion that the defendant did not
sufficiently raised triable issues, the plaintiff agreed to accept
R250
000 down payment against old debt and the payment of R150 000
going forward, based on the purchase of the 15 Surdial X machines
from the plaintiff; and once defendant have a go ahead from the bank
and the R250 000 payment is done, both parties can draft the
new
Agreement of Acknowledgement of debt accordingly. However, Defendant
did not fulfil the agreement as stated above, defendant
indicated
that he paid the R250 000.00 to the plaintiff, and ordered the goods,
and concluded wrong assumptions without engaging
the plaintiff going
forward, that the summons will be suspended.
[17]
The plaintiff denies that defendant paid the R250 000.00 as
such there is no new agreement except the old acknowledgement of debt
in place, since the fall of the negotiations between the parties on
02 July 2020 the defendant did not prove to this court what
steps
they have taken to fulfil the debt in the sum of R250 000.00, no
proof of payment on papers except an allegation that they
paid on the
06 July 2020 and negotiations with the bank.
[18]
No merit in the arguments raised by the respondent. The appeal
has no reasonable prospect of success and no compelling reasons that
the appeal should be heard. I have judicially exercised my discretion
and it is very unlikely that another court might find that
the court
exercised its discretion improperly.
[19]
I therefore make the following order
17.1
the application for leave to appeal is dismissed with costs on an
attorney and client scale
B.F MNYOVU
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel on behalf of
Applicant
: Adv. M Arroyo
Instructed
by
: Fritz Attorneys
Counsel on behalf of
Respondent
:
Adv Reimer Schoeman
Instructed
by
: Ramulifho Incorporated
Date
heard
: 02 June 2021
Date
of Judgement
: 10 June 2021
[1]
Act 10 of 2013
[2]
2014 JDR 2325 (LCC) at para 6