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[2018] ZAGPPHC 112
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Du Raan v Fedbond Nominees (Pty) Ltd and Another (47785/2009) [2018] ZAGPPHC 112 (2 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 47785/2009
2/3/2018
In
the matter between:
JAN
DU
RAAN
Applicant
and
FEDBOND
NOMINEES (PTY)
LTD
First
Respondent
FEDSURE PARTICIPATION MORTGAGE BOND
MANAGERS
(PTY)
LTD
Second
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MAKUME, J:
[1]
The
applicant who was still the applicant in the judgment that I handed
down on the 6
th
November 2017 seeks leave to appeal against the whole of the judgment
and order including the issue of costs.
[2]
The
grounds of appeal are centred largely on my interpretation of the
repealed Rule 66(1) of the Uniform Rules of Court as well
as to
whether the judgment granted by the court during the year 2009 had
supannuated or not.
[3]
The
test to be applied in determining an application for leave to appeal
is set out in Section 17(1) of the Superior Court Act No.
10 2013
which stipulates as follows:
"Leave to appeal may only be
given where the judge or judges concerned are of the opinion that:-
(a)
i)
the appeal must 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
[4]
The
applicant did not submit heads and relied on the heads of argument
filed and considered by me during the hearing in October
2017. Before
me was accordingly broad grounds of appeal supported with oral
submissions by counsel in which it is set out how I
erred in my
interpretation of Rule 66(1) of the Uniform Rules of Court and how I
applied incorrect legal principles in finding
against the applicant.
There is however nowhere in the application nor in counsel's
submission where any attempt was made to persuade
me that the appeal
would have a reasonable prospect of success or even that another
court may come to a different conclusion. The
applicant does not say
to what court the appeal should be directed.
[5]
It
is clear that the test envisaged in Section 17(1) is peremptory and
is two fold. Counsel for the respondent in opposing the application
not only filed comprehensive heads but referred me to authorities in
support of the test to be applied when considering such application.
found the heads and the authorities referred to helpful.
[6]
Hughes
J in
Nannen and Others vs Momentum
and Others (6796/05, 2275/05) [2017] ZAGPPHC 433 (14 June 2017)
in
dealing with the test said the following:
"What emerges from Section
17(1) is that the threshold to grant
a
party leave to appeal has been raised.
It
is
now
only granted in the circumstances set out and is deduced from the
words "only" used in the said section. See:
Mont
Chevaux Trust v Tina Goosen
&
18 Others 2014 JDR 2325 (LCC) at
paragraph [6]
Bertelsmann J held as
follows: "It is clear that the threshold for granting leave to
appeal against
a
judgment
of a High Court has been raised in the new Act. The former test
whether leave to appeal should be granted was reasonable
prospects
that another court might come to a different conclusion. See:
Van
Heerden v Cronwright
&
Others
1985 (2) SA 342
(t) at 343 H.
The
use of the word "would in the new statute indicates
a
measure of certainty that another court
will differ from the court whose judgment is sought to be appealed
against."
[7]
It
is trite that an applicant seeking leave to appeal must set out its
grounds of appeal succinctly and in clear terms to enable
not only
the court but the respondent to understand the case the applicant
seeks to make out before the court of appeal. The papers
before me do
not meet this requirement. However, it seems that the leave to appeal
is based on what is set out in paragraph 3 of
the notice which reads
as follows:
"That his lordship Justice
Makume erred in finding that the writ subsequently issued after the
court order had become superannuated
on 1 October 2002 in terms of
the old Rule 66(1) and after the new Rule 66 case into operation that
a writ
so
issued was not affected by the
old Rule 66(1) where Section 12(2) of the Interpretation Act 33 of
1957 specifically provides that
the effect of the law or in this
instance
a
Rule of court repealed is as
follows:
3.
1 that
the new rule shall not revive anything not in force or existing at
the time at which the appeal
takes effect and that the superannuation
therefore stands."
[8]
Counsel
for the applicant maintains that once the 3 years had expired from
the date the judgment was handed down in 2009 then it
is the end of
this judgment the judgment creditor can get no benefit out of it. I
do not agree this is a wrong interpretation because
a judgment
granted remains valid for 30 years.
[9]
Cotzee
AJ in the matter of
Metcash Trading
ltd vs Hickman
2012 (4) SA 53
GSJ
in
dealing with an application in which the applicant sought to revive a
judgment in terms of the repealed Rule 66(1) said the following
at
page 55 paragraph 5.
[5] The respondent argued in
limine that the judgment of Boruchowitz J is
so
ambiguous and obscure that it cannot be
revived. The judgment constituted the refusal of summary judgment on
condition that security
is provided, failing which summary judgment
was granted. It is common cause that the contemplated security was
not provided. This
may render the judgment unusual but certainly not
so
ambiguous
and obscure that I can and should disregard it. It remains a court
judgment which has not become prescribed."
[10]
In this matter when the respondent issued the Writ of Execution which
is now being challenged
the old Rule 66(1) had been repealed and the
judgment still existed. The old Rule 66(1) contained provisions
regulating procedure.
It is also evident that the applicant
misinterpreting the effect of Section 12(2) of the Interpretation Act
which reads as follows:
12(2) Where a law repeals any
other law, then unless the contrary intention appears the repeal
shall not:-
c) affect
any right, privilege, obligation or liability acquired, accrued or
incurred under
any law
so
repealed.
[11]
The right to execute the judgment
granted in 2009 could never have been lost after 3 years. That was
never the intention of the
legislature (See:
Transnet
vs Ngcezula
[1994] ZASCA 192
;
1995 (3) SA 538
A).
[12]
All in all the applicant has failed to
meet the test stipulated in Section 17(1) of the Superior Court Act
10 of 2013
[13]
In the result:-
a)
The application for leave to appeal is
refused
b)
The applicant is ordered to pay costs of
this application.
DATED at JOHANNESBURG on this the
day of FEBRUARY 2018.
M A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE
OF HEARING
: 20
FEBRUARY 2018
DATE OF DELIVER IN
FOR
APPLICANT
: Adv AJ
Swanepoel
INSTRUCTING
: Jay
Incorporated
Pretoria
(012)
460-1500
FOR
FIRST RESPONDENT
:
Adv JG
Botha
INSTRUCTING
: Craig
Berg Inc Attorneys
c/o Savage Jooste & Adams Inc
Pretoria
(012) 452-8200