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[2019] ZAGPPHC 1104
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Bowels v Taylor and Another (5842/2018) [2019] ZAGPPHC 1104 (8 March 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 5842/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
08/03/2019
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,dated7 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; "Therewas 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. Ne! 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 NCA 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: 8 March 2019