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[2019] ZANCHC 12
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Louw v Wesbank a division of Firstrand Bank Ltd (905/2018) [2019] ZANCHC 12 (22 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No: 905/2018
Heard on: 28/02/2019
Delivered on:
22/03/2019
In
the matter between
GETRUDE
LOUW
Applicant
And
WESBANK,
a division FIRSTRAND BANK LTD
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
PAKATI
J
[1]
The applicant, Ms Getrude Louw, applies for leave to appeal the order
I granted on 19 November 2018. She filed
her notice dated 29 November
2018 on 30 November 2018. The respondent, Wesbank, a division of
Firstrand Bank Ltd, opposes the application.
On 19 November 2018 I
made the following order:
‘
1.
The main application is dismissed.
2.
The
applicant, Ms Louw, is ordered to forthwith deliver into the
possession of the Sheriff of this Division a 2016 Volkswagen Golf
VII
2.0 TSI R DSG with engine number WVWZZZAUZGW284785 and a 2018 Ford
Ranger 2.2 TDCI XL A/T P/U D/C with engine number QJ2LPHC22366,
who
shall deliver them to the respondent, Wesbank, a division of
Firstrand Bank Limited, who shall in turn, at its own expense:
2.1
Transport
the vehicles to garaged premises situate at Day and Knight Towing, 3
Cecil Sussman Street, Kimberley;
2.2
Retain
the vehicles at such garaged premises under security, pending the
outcome of the action under Case Number 1046/2018 instituted
by the
respondent, Wesbank, against the applicant, Ms Louw, in this Court.
3.
The
respondent shall not use the vehicles or permit that they be used.
4.
In the
event that the applicant fails to comply with the order above within
five days of service of this order on the applicant’s
attorneys
of record, the Sheriff is authorised and directed to take the
vehicles into his possession from whomever and wherever
he may find
them and return them to the respondent as aforesaid.
5.
The
applicant is ordered to pay the costs of this application on a scale
as between party and party.’
[2]
In her notice the applicant recorded the following grounds summarised
thus:
2.1
That I erred in finding on the facts contained in the summons which,
according to her, clearly show that a dispute of fact surrounding
the
validity and enforceability of the credit agreement exists. She
referred to paragraphs 10, 11, 12 and 13 of my judgment;
2.2
That I erred in finding that it could be perceived that Mawele
Construction (Pty) Ltd was used as a front employer to induce
the
bank to approve her application for finance;
2.3
That I erred by failing to give cognisance to the fact that the
insurance premiums for the vehicles was paid monthly thereby
ruling
out the risk of irreparable harm to them;
2.4
That I erred in basing my finding on the completed application forms
for finance as that is in dispute and can only be clarified
by Mr
Strydom’s evidence during the trial; and
2.5
That I erred in basing my judgment on facts not proven yet by the
action proceedings thereby granting the counter-application
in favour
of the respondent.
[3]
The fact that the applicant paid the insurance premiums of the motor
vehicles is neither here nor there. The
motor vehicles remain the
bank’s property until the final instalment has been paid in
full. In my judgment I found that the
applicant failed to satisfy the
requirements for the relief sought. I also found that the balance of
convenience favoured the bank.
I re-iterate what I said in my
judgment that the function and purpose of an interim attachment order
is to protect the leased goods
against deterioration and damage and
to keep them in safekeeping until the case between the parties has
been finalised. Its purpose
is not to enforce remedies or obligations
under the credit agreement, and the remedy does not form part and
parcel of the debt
enforcement process envisaged in the
National
Credit Act, 34 of 2005
.
[1]
In
VAN
RHYN v REEF DEVELOPMENTS A (PTY) LTD
[2]
Margo J held that if the claim by an applicant for an interdict
pendete
lite
is vindictory and if in the circumstances he is entitled to an
interim interdict restraining the use of the thing by the respondent,
then there is no reason why a further order should not be granted
authorising attachment
pendete
lite
to give effect to the restraint against use and to protect the thing
from deterioration.
[4]
On 04 December 2018 the applicant brought an application for the stay
of the enforcement of my judgment handed
down on 19 November 2018 on
urgent basis in terms of
section 18
(1) of the
Superior Courts Act,
10 of 2013
[3]
. This application
was dismissed by Coetzee AJ the same day. The applicant allowed the
Sheriff to remove the motor vehicles to a
safe storage. She did not
appeal the decision dismissing her application for stay of execution.
In
SOUTH
AFRICAN REVENUE SERVICE v COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION AND OTHERS
[4]
Mogoeng CJ (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J concurring)
held:
‘
[26]
Peremption is a waiver of one’s constitutional right to appeal
in a way that leaves no shred of reasonable doubt about
the losing
party’s self-resignation to the unfavourable order that could
otherwise be appealed against. Dabner articulates
principles that
govern peremption very well in these terms:
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the
onus
of establishing that position is upon the party alleging it.’
The
onus
to
establish peremption would be discharged only when the conduct or
communication relied on does ‘point indubitably and
necessarily
to the conclusion’ that there has been an abandonment of the
right to appeal and resignation to the unfavourable
judgment or
order.’
[5]
Rogers AJA in
CIPLA
AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS
[5]
stated:
‘
[19]
An interim interdict pending the determination of an action is not
final in effect, which is why matters decided for purposes
of
granting interim interdicts do not become
res
judicata
.
The grant of an interim interdict is thus not usually appealable.’
[6] Leach
JA (Navsa JA, Cachalia JA, Tshiqi JA and Willis JA concurring) in
LAGOON
BEACH HOTEL (PTY) LTD v LEHANE NO AND OTHERS
[6]
held:
‘
[33]
In the light of these considerations I see no reason to interfere
with the court
a
quo
’s
recognition of Mr Lehane. It had the discretion to exercise whether
or not to do so, and in my view such discretion was
properly
exercised. It also properly exercised its discretion to grant an
interim interdict to preserve assets in respect of which
Lehane had
established a
prima
facie
right. In broad terms, then the appeal must fail.’
[7]
It begs a question whether granting an interim interdict is final in
effect and therefore appealable. Harms
DP answered this question in
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS v KING
[7]
thus:
‘
[46]
It is, however, necessary to emphasise that the fact that an
“interlocutory” order is appealable does not
mean that
leave to appeal ought to be granted because if the judgment or order
sought to be appealed against does not dispose of
all the issues
between the parties the balance of convenience must, in addition to
the prospects of success, favour a piecemeal
consideration of the
case before leave is granted. The test is then whether the appeal, if
leave were given, would lead to a just
and reasonable prompt
resolution of the real issue between the parties. Once leave has been
granted in relation to a “judgment
or order” the issue of
convenience cannot be visited because it is not a requirement for
leave, only a practical consideration
that a court should take into
account.’
[8] I
re-iterate what I said in paragraph [20] of my judgment that the
declaratory order sought by the applicant
was final in nature and
therefore the principle in
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[8]
was applicable.
[9]
None of the findings I made in my judgment of 19 November 2018 is
binding in a later trial.
[9]
In
the instant case the interim interdict is also not final in nature
and therefore not appealable. The judgment or order sought
to be
appealed against does not dispose of the issues between the parties.
It is not in the interest of justice to deal with this
matter
piecemeal. In my view, there are no prospects of success. No other
court may arrive at a different decision. The application
must
therefore fail.
ORDER
The
application for leave to appeal is dismissed with costs.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
For
the applicant:
ADV E KAMMIES
Instructed
by:
MZUZU
ATTORNEYS
For
the Respondent:
ADV WG PRETORIUS
Instructed
by:
DUNCAN
& ROTHMAN
[1]
See SA Taxi Securitisation (Pty) LTD v Chesane
2010 (6) SA 557
(GSJ)
at para [10]; See also Wesbank, a division of Firstrand v Krorosi
Samuel Magaladi: Case No. 62969/2013 delivered on 13
February 2018
at para [6] where Khumalo J held: ‘The function and purpose of
an interim attachment order is to protect
the leased or partially
paid for goods against deterioration and damage and to keep them in
safekeeping until the case between
the parties has been finalised.
[2]
1973 (1) SA 488 (W)
[3]
Section 18
(1) provides: ‘(1) Subject to subsections (2) and
(3), and unless the court under exceptional circumstances orders
otherwise,
the operation and execution of a decision which is the
subject of an application for leave to appeal, is suspended pending
the
decision of the application or appeal.
[4]
2017 (1) SA 549
(CC) at para [26]
[5]
2018 (6) SA 440
(SCA) at para [19]; See also African Wonderers
Football Club (Pty) Ltd v Wanderers Football Club
1977 (2) SA 38
(A)
at page 38; Phillips and Others v National Director of Public
Prosecutions
2003 (6) SA 447
at paras [17] & [20] and Cronshaw
and Another v Fidelity Guards Holdings Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A)
at 691A
[6]
2016 (3) SA 143
(SCA) at para [33]
[7]
[2010] (3) All SA 304
(SCA) 304 at para [46]
[8]
[1984] ZASCA 51
;
1984 (3) SA 623
(a) AT 634H-I
[9]
Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another
2014 (5) SA
297
(SCA)