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[2021] ZAGPJHC 663
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Izandla Property Fund v Afro Architectural CC and Another (21601/2020) [2021] ZAGPJHC 663 (24 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 21601/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
24 August 2021
In
the matter between:
IZANDLA
PROPERTY FUND
PLAINTIFF/RESPONDENT
and
AFRO
ARCHITECTURAL CC
FIRST DEFENDANT/APPLICANT
SERGE
NZEMBELA
SECOND DEFENDANT/APPLICANT
Coram:
Majavu AJ
Heard
:
13 AUGUST 2021
Delivered:
24
AUGUST 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, by
being
uploaded to the
CaseLines
digital system of the GLD and by release to SAFLII. The date and time
for hand-down is deemed to be 14h00 on 24 AUGUST 2021
Summary:
Application for leave to appeal against judgment handed down on 31
May 2021, no reasonable prospects that another court
would arrive at
a different conclusion, neither are there any compelling reasons for
the appeal to be allowed, application dismissed
with costs on
attorney and client scale, including costs consequent upon the
employment of counsel.
ORDER
(a)
Application for leave to appeal is dismissed with costs, on an
attorney and own client scale,
including costs consequent upon the
employment of counsel.
Majavu
AJ
Introduction
[1]
This is an opposed application for leave to appeal against my
judgement handed down on 31
May 2021.
[2]
The grounds of appeal can be summarized as follows:
2.1 I
erred in reducing the substantive defences raised, to technical
quibbles, overly formalistic contentions.
2.2 I
erred again in stating that the defendant had failed to state the
true nature of its defence.
2.3 It
was asserted, quite condescendingly, that I failed to consider the
relevance of the fact that the lease
upon which the
plaintiff/respondent relies was purportedly only concluded 15 July
2019 and allegedly made retrospective to 1 March
2019. It is
suggested that it is
improbable, if not ridiculous (sic)
to
suggest that the defendants/applicants were in occupation of the
premises form 1 March 2019 until 15 July 2019 without any agreement.
2.4 I
erred by reading the word “landlord out of context”.
2.5 I failed
to question the reliability or credibility of Ms Bisschoff with
regard to the remainder of her affidavit,
given the what is regarded
as an earlier false statement.
2.6 I
omitted to summarize the evidence or in the alternative, I misstated
the version of the defendants/applicants.
2.7 I
erred in deciding the true contractual basis of the dispute simply on
the papers without due consideration
of the countervailing version of
the defendants/applicants
2.8 I
erred by raising the bar too high for summary judgement proceedings
to the extent that I found that the
defendants do not raise a triable
issue or bona fide defence; and lastly
2.9
That the amount awarded is different to the one actually claimed.
[3]
I do not intend to traverse the grounds in the order and manner in
which they were
raised, however, I will deal with the thrust and
general import thereof and weigh that against the applicable test.
[4]
A useful starting point is
section 17(1)
of the
Superior Courts Act
10 of 2013
which states that:
(1)
leave to appeal may only be given 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
judgements on the matter under consideration,…”
[5]
Principally, the above is the applicable framework or lens through
which any application
for leave to appeal must be assessed.
[6]
This court approved, what one can refer to as a more
stricter
approach
lens, when adjudicating an application for leave to appeal: This was
in the matter of the Acting National Director of Public Prosecution
v
Democratic Alliance (Society for the protection of our Constitution
and Amicus Curiae)
[1]
:
The
Superior Courts Act
has
raised the bar for granting leave to appeal in the Mount Chevaux
(IT 2012/28) v Tina Goosen & 18 others, Bertelsmann J held
as
follow(s):
“
it is clear
that the threshold for granting leave to appeal against the judgement
of the High Court has been raised in the new act.
The former test
where 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) as a 342 (T) at 343H. The
use of the word
“would”
in the new statute indicates a
major
of certainty
that
another court
will
differ
from the court whose judgement is sought to be appealed against”
[emphasis added]. This new (stricter test approach), which I am bound
by, was confirmed by the Supreme Court of appeals (SCA) in
S
v Notshokovu
[2]
, albeit
in
criminal proceedings, however in my view and per force of reasoning,
the same principle is of equal application in the civil
context. In
that case the court had this to say:
“
an appellant,
on the other hand, faces a higher and stringent threshold, in terms
of the (superior courts) act compared to the provisions
of the
repealed Supreme Court Act 59 of 1959. (See Van Wyk v S, Galela v S
[2014] ZASCA152; 2015(1) SACR584(SCA) para [14]”
[7]
I deemed it appropriate to sketch the applicable test against which
this application
would be adjudicated. I will now deal with the
grounds on which this application is mounted, against the applicable
test. It also
bears mentioning at this early stage that, the need to
obtain leave to appeal is a necessary filter, through which
unmeritorious
appeals
do not
consume limited and overstretched
judicial resources. It is incidentally for the same reasons that I,
found that, permitting this
particular matter to proceed to trial in
circumstances where in my view, that the underlying indebtedness
remained undisturbed,
notwithstanding technical points, lacking in
merit, raised by the defendants. The same mischief seems to be
exactly what the introduction
of the regime of an application for
leave to appeal is meant to obviate.
Turning
to the grounds
[8]
I determined the matter on the papers, without any need to refer any
aspect to oral
evidence, as the issues were indeed resoluble on the
papers. I did not ignore the version of the defendants as critiqued.
To the
contrary, I considered it and weighed it against that of the
plaintiff, as well and the other supporting documents at my disposal.
The fact that I arrived at a conclusion different to the one the
defendants would have preferred, does not justify such an inference.
I remain satisfied that a written lease agreement had in fact been
concluded between the parties, and not with another party, with
reference to the Plaintiff, as the Defendants assert and further that
such an agreement was indeed breached and that the requirements
for
summary judgement were met by the plaintiff.
[9]
A blanket denial that the defendants concluded the lease agreement
with the plaintiff
does not, in and of itself morph into a dispute of
fact, when
ex facie
the attached lease agreement, as well as
the surety agreement, the existence of such an agreement is
unassailable. There is no
merit in the assertion that the Plaintiff
is non-suited on account of a denial that the lease agreement was
concluded with it,
thus this ground must fail. This seems to be the
main defence (and I guess, the main ground) of the applicants. This
was made plain
by counsel who indicated that if another court finds
that the Plaintiff is non- suited, that is the end of the matter.
Conversely,
one must accept that if it is found that the Plaintiff is
not non–suited, then that is also game over for the defendants.
I do not find that another court would come to a different
conclusion.
[10]
In relation to the ground relating to the difference between the
amount claimed and the amount
awarded,
R 334 681, 95,
as
opposed
R 334 618, 95
(as asserted in the notice being an
incorrect amount), that is plainly a non-material typo, which is
capable of correction either
mero motu
by the Court or on
application by either of the parties in terms of rule 42 of the
Uniform Rules of Court.
[11]
Firstly, the amount stated in the application for summary judgement
is
R 334 681,95
, and that is repeated in prayer
section/relief sought (para 6) under “
claim 1”.
[12]
Secondly, the same figure of
R 334 681,95
is repeated in
the affidavit in support of the application for summary judgement
deposed to by Ms Jacqueline Bisschoff (“Bisschoff”)
(at
paragraphs 5.3 read with 6.1, the latter in turn refers back to the
same amount as claimed in the summons), who is self-evidently
the
relevant portfolio manager employed by Broll Properties, as the
plaintiff’s duly authorized management agent.
[13]
Thirdly, the only issue, which is now being elevated to a
self-standing ground of appeal on the
basis of the court being
functus officio
arises from the prayer section of Bisschoff’s
affidavit in sub paragraph 1, where the amount is reflected as
R
334 6
18
,95
instead of
R 334 6
81
,95.
[14]
Fourthly, the amount awarded is not out of kilter with the amount
claimed even in the summons
(POC) as it is correctly reflected as
R
334 681,95
and repeated in the prayer section under “claim
1” sub paragraph 1 as
R 334 681,95.
[15]
Accordingly, in my view, this clear typographical error, when one
reads all the pleadings purposefully,
cannot be a self-standing
ground of appeal. In any event, this ground, formulated as such must
fail. I am not persuaded that even
on this score, another court would
come to a different conclusion.
[16]
To the extent that I found that the new rule 32 requires of the court
to assess whether the pleaded
defence as generally advanced, is a
genuine defence or at the very least, is advanced genuinely, as
opposed to a sham and put up
for purposes of delay
[3]
,
the court said the following at para 23:
“
a court seized
with an application for summary judgement is not charged with
determining the substantive merit of the defence, nor
with
determining its prospects of success.
It is only concerned
with an assessment of whether the pleaded defence is genuinely
advanced, as opposed to a sham for purposes
of obtaining
delay”
[17]
I have already found that the “wrong party” defence is
not sustainable, having found
that a written lease agreement was
concluded between the parties. So, to the extent that the applicant
hangs its ground on it,
I remain unpersuaded (even on a relaxed
test), that another court would arrive at a different conclusion than
the one I arrived
at previously.
Conclusion
[18]
It would therefore not be in the interests of justice to permit
un-worthy defendants to marshal
this matter further on to trial. I
was also unable to find any other compelling reason in favour of
granting leave to appeal.
[19]
For these reasons, I make the following order:
Order
(a)
The application for leave to appeal is dismissed with costs, on an
attorney and own client
scale, including the costs consequent upon
the employment of counsel.
Z
M P MAJAVU
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
13 August 2021
JUDGMENT
DATE:
24 August 2021
FOR
THE PLAINTIFF:
Adv B P Geach SC
INSTRUCTED
BY:
Rhina Rheeders Attorneys Inc.
FOR
THE DEFENDANT :
Adv JG Dobie
INSTRUCTED
BY:
Reaan Swanepoel Attorneys
[1]
2016 JD R1211
(GP at page 13
[2]
2016 JDR 1647 (SCA)
[3]
Tumileng Trading CC v National Security and Fire (Pty) Ltd
2020 (6)
SA 624
(WCC) at para 23