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[2019] ZAGPPHC 341
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ABSA Bank Limited v Phakamole Trading CC and Others (44997/2017) [2019] ZAGPPHC 341 (2 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
NG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES
Case number:
44997/2017
2/8/2019
In
the matter between:
ABSA
BANK LIMITED
Applicant
and
PHAKAMOLE
TRADING
CC
First respondent
MOLEBOGENG
MBETHE
Second respondent
PHAKAMA
MPUMELELO
NKOSI
Third respondent
ADVENT
OIL (PTY)
LTD
Fourth respondent
MOHWELERE
TRADING (PTY)
LTD
Fifth respondent
LAZARUS
MODIJANE MBETHE
NO
Sixth respondent
SYLVIA
RASSIE MBETHE NO
Seventh respondent
WERNER
FULS NO
Eighth respondent
JUDGMENT
KRUGER
AJ
[1]
The
application for leave to appeal was set down to be heard in the High
Court on 30 July 2019. On that day protesters blocked the
Pretoria
CBD, preventing easy access to the court building. Counsel for the
respective parties graciously agreed that the application
be heard in
the arbitration facility at Chambers. The absence of a court
transcriber however prevented an
extempore
judgment and compelled me to prepare
a written one.
[2]
The
sixth, seventh and eighth respondents (to whom I collectively refer
as the "trust") seek leave to appeal against the
order
joining them in their representative capacity as sixth, seventh and
eighth defendants in the main action instituted by the
applicant
against the first to fifth respondents as defendants for payment of
amounts due and owing in respect of goods sold and
delivered by the
applicant to the first respondent.
[3]
The first question to be answered is whether the order granted is
appealable. Although
the order granted is final in effect, it is
merely procedural in that it joins the trust as a party to an
existing action. The
order prevents a multiplicity of actions and
intends to prevent the same evidence being led in separate actions.
The order does
not prevent the trust from raising any defense
available to it and will indeed afford the trust an opportunity to
participate in
the examination of the events leading to the signing
of the various deeds of suretyship. In this regard it is much like
the refusal
of an exception, which is not appealable. Accordingly, I
hold that the order granted is not appealable and would refuse leave
to
appeal on this ground alone.
[4]
Even if I were wrong in my conclusion in the aforegoing paragraph,
the trust cannot
succeed with its application for leave to appeal for
the reasons that follow.
[5]
The
trust raised six grounds in the application for leave to appeal.
Counsel for the trust combined the grounds of appeal and argued
that
clause 1.2 of the suretyship as quoted in the judgment was against
public policy. This point was not taken in the affidavit
resisting
joinder and was not considered in granting the relief sought by the
applicant. In my opinion in order to rely on this
point it needs to
be raised in the pleadings whereafter full argument on the issue can
be presented, supported by evidence if necessary.
[6]
In
granting the order joining the trust the court exercised a
discretion. The trust does not allege that the discretion was not
judicially exercised and, in the circumstances, there is no basis
that a court of appeal will come to a different conclusion.
[7]
There
is no prospect of success, and in the circumstances I make the
following order:
1. The
application for leave to appeal is dismissed with costs.
TP
KRUGER
Acting
Judge of the High Court
Counsel
for the applicant:
Adv L Meintjies
Instructed
by:
Rorich Wolmarans & Luderitz Inc
Counsel
for the 5
th
- 8
th
respondents:
Adv T Makgate
Instructed
by:
NGA Legal
c/o
Klagsbrun Edelstein Bosman De
Vries
Inc