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[2019] ZAGPPHC 48
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Bowels v Taylor and Another (5842/2018) [2019] ZAGPPHC 48 (8 March 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED.
CASE NO: 5842/2018
8/3/2019
In
the matter between:
MONIQUE
BOWELS
APPLICANT
And
IAN
GARY TAYLOR
FIRST RESPONDENT
MOIDRAG
DOMAZET
SECOND REPONDENT
JUDGMENT
MOSOPA
AJ
INTRODUCTION:
1.
This
an application for leave to appeal judgment and order I made on the
24 August 2018, to either the Full Bench of this Division
or to the
Supreme Court of Appeal.
2.
This
matter served before me initially as an application for summary
judgment, brought by the Respondent against the Applicant in
which
the Respondent sought relief in the following.
2.1
That
the First and Second Defendants (Applicant) be ordered jointly and
severely, the one to pay the other to be absolved pro tantoto
pay the
amount of R 2,570,000,00 to the Plaintiff (Respondent).
2.2
Interest
a temporae morae at rate of 15, 5 % per annum on the amount of R
2,570,000,00 and costs.
3.
The
summary judgment application was only opposed by the Second Defendant
the current Applicant, and the First Defendant elected
not to oppose
the application, but made a request that if the Second Defendant is
granted leave, such be extended him. I ruled
in favor of the
Respondent in that summary judgment application.
4.
Section
17 of the Superior Courts Act 10 of 2013 ("Act") govern the
procedure for leave to appeal and provides;
"17. (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 judgments on the
matter under consideration;
(b)
the decision sought on appeal does not
fall within the ambit of section 16(2)(a); and
(c)
where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties".
5.
Dr
Ebersohn on behalf of the Applicant contended that another court can
come to a different decision from what I arrived at and
further that
the matter is of national interest and on that basis leave to appeal
ought to be granted. From the above, even though
Dr Ebersohn did not
mention that, it can be safely assumed that he is relying on the
provisions of section 17 (1) (a) of the Act
in bringing this
application.
6.
In
Mont Chevaux Trust (IT 2012/28) v Tina Goosen (unreported, LCC Case
No (LCC 14/R/2014 dated 3 November 2014) the Land Claims
Court held (
in an obiter dictum) that the wording of this subsection raised the
bar that now has to be applied to the merits of
the proposed appeal
before leave should be granted. In Notshokovu v S (unreported, SCA
case no 157/15,dated 7 September 2016) at
par 2 it was held that an
Appellant faces a higher and stringent threshold, in terms of the
Act( i.e. this subsection),compared
to the provisions of the repealed
Supreme Courts Act 59 of 1959,(see also Erasmus, Superior Court
Practice,2
nd
ed, Van Loggenberg at A2-55).
7.
In
my judgment which is under consideration, I came to a conclusion
that, agreement concluded by the Applicant and the Respondent
is not
a credit transaction as envisaged by
section 8
(4) (f) of the
National Credit Act no 34 of 2005
("NCA") as a result the
NCA is not applicable in this matter. Meaning that it was not
incumbent upon the Respondent to
first issue the
section 129
notice
before enforcing its debt against the Defendants. Secondly, there was
no need for the Respondent to register as a service
provider in terms
of the Act.. I also relied on the dicta provided in Shaw and Another
v Mackintosh and Another
(267(1)
(2018) ZACA 53 (dated 29 March 2018)
by Mathopo JA.
8.
Dr
Ebersohn contended that the matter of Shaw (supra) has been overruled
by the matter of Du Bryn No and Others v Karsten (929/2017)
(2018)
ZASCA 143
(dated 28 September 2018). In the Du Bryn N.O (supra) the
court at par 24 held that, "insofar as it is contended that this
court has decided that once-off transaction do not fall within the
ambit of NCA in Shaw and Another v Mackintosh and Another
(2018)
ZASCA 53
(Shaw) this proposition, too, is incorrect".
9.
The
contention of Dr Ebersohn cannot be supported as the Judge said in
the De Bryn matter; "There was an interpretation of
section 40
(1) and no reference Friend. In my view Shaw cannot be said to be
authority on the requirements of registration of a
credit provider.
"What the presiding Judge intended to mean in the De Bryn
matter, was that it was wrong for counsel to contend
that the court
in the De Bryn matter, pronounced that once-off transaction do not
fall within the ambit of NCA.
10.
In
all fairness to Dr Ebersohn the circumstance in the De Bryn's matter
is distinguishable from the Shaw's matter.
11.
Mr.
Nel on behalf of the Respondent contended that the Applicant doesn't
not fall under the definition of a consumer as envisaged
by the NCA,
and further that one can only enter into a credit agreement if you
are a consumer. I have dealt with that aspect thoroughly
in my
judgment and referred to the relevant provisions in the NGA and as
such the aspect need no further mention.
12.
I
see no other court coming to a different conclusion from what I
arrived at and the Applicant has no prospects of success.
ORDER
13.
I therefore make the following order;
1.
Application for leave to Appeal is
dismissed
2.
Applicant is ordered to pay costs of the
application.
M.J MOSOPA
ACTING JUDGE OF THE HIGH COURT
PRETORIA
HIGH COURT
APPERANCES
For
Applicant : Dr G. Ebersohn
Instructed
by: Gerrie Ebersohn Attorneys
For
the Respondent: Adv E. J. J Nel
Instructed
by: Davie de Beer Attorneys
Date
of Hearing: 26 October 2018.
Date
of Judgment: