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[2019] ZAGPPHC 309
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Standard Bank of South Africa Ltd v Strydom N.O and Others (64891/2015) [2019] ZAGPPHC 309 (11 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
REPORTABLE:
YES
/No
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case Number: 64891/2015
11/7/2019
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LTD
Plaintiff
And
PIETER
HENDRIK STRYDOM
N.O.
First Defendant
DEON
MARIUS BOTHA N.O.
CAROLINE
MMAKGOKOLO LEDWABA N.O.
[In
their capacities as joint provisional trustees of the Insolvent
Estate
Frederick Barend Christoffel Kirsten]
SUIDWES
LANDBOU (PTY)
LTD
Second Defendant
SILOSTRAT
(PTY) LTD
Third Defendant
THE
LAND AND AGRICULTURAL DEVELOPMENT BANK OF
Fourth Defendant
SOUTH
AFRICA
TECHNICHEM
OESBESKERMING (PTY) LTD
Fifth Defendant
JUDGMENT
-
LEAVE TO APPEAL
JANSE
VAN NIEUWENHUIZEN J
[1]
In
this judgment, for ease of reference, I propose to refer to the names
of parties.
[2]
Three
parties apply for leave to appeal against the judgment and orders
handed down by this court on 9 May 2019, to wit:
[2.1]
Standard Bank;
[2.2]
Silostrat; and
[2.3]
Suidwes.
Standard
Bank
[3]
Standard
Bank's application pertains to my findings in respect of the
interpretation of clause 1 of the deed of cession dated 22
November
2011, the claim for rectification, the finding on rectification post
concursus creditorem
and
costs.
[4]
In
respect of the finding on rectification post
concursus
creditorem,
Standard Bank submits
that leave should be granted to the Supreme Court of Appeal due to
existing academic and other criticism levied
against the judgment in
Nedbank v Chance and Others
2008
(4) SA 209
D&CLD and the precedent created by the decision.
[5]
Having
had regard to the grounds relied upon in its application for leave to
appeal against the findings pertaining to the interpretation
of
clause 1 of the deed of cession dated 22 November 2011 and the
rectification claim, I am of the view that Standard Bank has
failed
to establish that it would have a reasonable prospect of success in
the appeal.
[6]
In
view of the aforesaid, the question whether the legal principles
pertaining to rectification post
concursus
creditorem
becomes academic.
[7]
I
am, however, of the view that Silostrat, for the reasons referred to
infra,
would
have a reasonable prospect of success in an appeal. The nature of
Silostrat's claim does, in my view, not justify the attention
of the
Supreme Court of Appeal.
[8]
Should
Standard Bank, however, on an application for leave to appeal to the
Supreme Court of Appeal, be granted leave, a situation
might arise in
which the matter is dealt with in a piecemeal fashion.
[9]
I
n
order to avoid this untenable position, I am inclined to grant leave
to appeal to Standard Bank in order for the matter to be
dealt with
in one appeal.
Silostrat
[10] In
respect of Silostrat's conditional counterclaim against Standard
Bank, Silostrat contends that this
court erred in applying a narrow
interpretation of the term
"valid and enforceable''.
[11]
According to Silostrat there is a
reasonable prospect that, should another court apply a wide
interpretation of the term, its claim
against Standard Bank would
succeed.
[12]
The remainder of the requirements on
which its claim is premised appears, according to Silostrat, from the
evidence presented during
the trial and could be dealt with on
appeal. I agree.
[13]
In respect of Silostrat's claim against
Suidwes, Silostrat avers that this court erred in not finding that
Africum is a mere extension
of Suidwes. A finding that Africum is
part and parcel of Suidwes will lead to a reasonable prospect that
another court may find
that Suidwes appropriated and or disposed of
22 619, 52 tons of Mr Frederick Barend Christoffel Kirsten's 2015
maize crop.
[14]
Once again and according to Silostrat,
the remainder of the requirements it has to meet in order to obtain
relief against Suidwes
appears from the record and is capable of
being dealt with on appeal.
[15]
I agree that a reasonable prospect
exists that Silostrat would be successful on appeal and such an order
will follow.
Suidwes
[16]
Suidwes
applies for leave to appeal against the cost order granted in favour
of Technichem.
[17]
Suidwes
more specifically avers that this court erred in ordering Suidwes to
pay Technichem's cost of suit.
[18]
Suidwes
points out that Technichem was joined as a defendant by Standard
Bank. Technichem successfully opposed Standard Bank's claim
against
it and the appropriate costs order should have been against Standard
Bank.
[19]
Technichem,
by way of a conditional third-party notice claimed payment of a
portion of the 2015 maize crop proceeds from Suidwes
and an order
that its cession ranked above that of Suidwes.
[20]
Technichem
abandoned its claim for payment against Suidwes at the end of the
trial and only succeeded with the order in respect
of the ranking of
its claim.
[21]
Bearing
in mind that the dispute between Technichem and Suidwes only took up
half a day of the 15-day trial, Suidwes submits that
a reasonable
prospect exists that another court would order Suidwes to pay only
the costs incidental to Technichem's third party
proceedings and only
to the extent that Technichem was successful.
[22]
Although
a court very seldom grants leave to appeal a cost order, I am of the
view that the present circumstances, warrants an exception.
Consequently, leave is granted to Suidwes to appeal the cost order.
ORDER
1.
Leave is granted to Standard Bank,
Silostrat and Suidwes to appeal to the Supreme Court of Appeal
against the judgment and order
of this court handed down on 9 May
2019.
2.
The costs of the
applications for leave to appeal will be costs in the appeal.
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD
28 June 2019
JUDGMENT
DELIVERED
11 July 2019
APPEARANCES
Counsel
for the Second Defendant:
Advocate K.W. Luderitz SC
and
Advocate G.E. Amm
Instructed
by:
Norton Rose
Fulbright South Africa Inc
(011
685 8872)
Ref:
STD10438/Mr A Strachan/
Mr
R Petersen
Counsel
for the Third Defendant:
Advocate F. Terblanche SC
and
Advocate H. Fourie SC
Instructed
by:
Loubser & Loubser
Attorneys
(012
997 0041)
Ref: J H LoubserlLL0241
Counsel
for the Plaintiff:
Advocate J.P. Daniels SC
and
Advocate J. Smit
Instructed
by:
Cliffe Dekker Hofmeyr Inc
(011
562 1356)
Ref:
Mr. T Jordaan
Counsel for the First
Defendant:
Advocate B. Bergenthuin SC
and Advocate B.
Bergenthuin
Instructed
by:
Grimbeek Van Rooyen
(056 212 4251)
Ref: Mr I van Rooyen
Counsel
for the Fourth Defendant:
Advocate M.P.
Van der Merwe SC
Instructed
by:
Ningiza Horner Attorneys
(011
326 5439)
Ref:
Mr David Horner
Counsel
for the Fifth Defendant:
Advocate J.
Pretorius
Instructed
by:
Gerrit Coetzee Inc
(018
297 1310)
Ref: Mr G Coetzee