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[2018] ZAFSHC 191
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Myburgh NO and Another v Standard Bank of South Africa Ltd (1429/2018; 1482/2018) [2018] ZAFSHC 191 (7 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1429/2018
1482/2018
In
the matter between:
DUDLEY MYBURGH
N.O.
1
st
Applicant
NICOLAAS JACOBUS KRIEK
N.O.
2
nd
Applicant
(First and Second
Respondents in their capacities
as duly authorised
trusteed of
MYBURGH EIENDOMS
TRUST, IT 1278/98
)
and
THE STANDARD BANK OF
SOUTH AFRICA LTD
Respondent
HEARD
ON:
9 NOVEMBER 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED ON:
7 DECEMBER
2018
[1]
These are applications for leave to appeal to the Supreme Court of
Appeal against my findings of fact and law as well as the
orders
under case number 1429/2018 and 1482/2018. The grounds upon which the
appeals are based are similar in both cases. Therefore
this judgment
will deal with both of them as one. The applications are opposed by
the respondent.
[2]
The applicants have raised eleven (11) grounds of appeal supporting
their contention that I erred. Briefly the deal with the
provisions
of
section 45
of the
Companies Act 71 of 2008
, suspensive condition,
section 123
of the
National Credit Act 34 of 2005
, alleged breach of
contract, the overcharging of the interest by the respondent,
reckless credit agreements, disparity between
the various amounts,
failure to resolve conclusion of notarial bonds, the refusal to allow
further affidavit, misapplication of
the Badenhorst rule, failure to
satisfy the requirements laid in
section 12
of the
Insolvency Act 24
of 1936
.
[3]
Mr Maritz on behalf of the appellants contended that the fundamental
issue which forms the basis of the appeal is whether there
was proof
of compliance with
Section 45
of the
Companies Act. He
submitted that
the authority was to sign documents relating to the loan agreements.
This did not follow that he had the authority
to exercise the vote as
a shareholder. He pointed out that there was no general meeting held
in this regard. The documents
were signed without enquiring
whether Dudley Myburgh was still a shareholder. The documents were
signed without a general meeting.
[4]
He continued that the term loans amounted to R30 million rands while
the assets exceeded R110 million rands. His argument
was that
if the Trust is not bound by the Omnibus Guarantee then the Trust was
not insolvent and not in default of any of its obligations.
[5]
On the issue of the suspensive condition he submitted that it was not
proved that the suspensive condition was fulfilled. Therefore
the
respondent failed to show that the Addendum and the Omnibus Guarantee
constituted valid issues of indebtedness. There was no
special
resolution by the Trust as the documents were simply placed before
Dudley Myburgh to sign.
[6]
In opposition Mr. Zietsman submitted that it is trite law that
appeals are against decisions not reasons of the court. The applicant
has proved indebtedness of over R100.00, the respondent has committed
an act of insolvency and that it will be to the advantage
of
creditors in the event that the sequestration order is granted.
[7]
He argued that there was no argument that either of the findings made
were wrong. It is common cause that the authority given
to Dudley
Myburgh was never revoked at any stage. In this matter, the cause of
action was sequestration not the enforcement of
a debt. On the issue
of the perfection order, he submitted that its purpose was to get a
real right of the assets. Lastly that
the two (2) applications did
not have anything to do with each other.
[8]
Section 17(1)
of the
Superior Courts Act 10 of 2013
reads as
follows:-
“
17.
Leave to appeal.—(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.”
[9]
The current test was succinctly explained in
Mount Chevaux Trust v
Goosen 2014 JDR 2325 (LCC).
On that occasion Bertelsmann J
at para 6 stated the following:-
“
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 a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v
Cronwright & Others
1985
(2) SA 342
(T) at 343H. 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. This new standard is applied by
Section 37
(4) (b) of the
Restitution of Land Rights Act 22 of 1994
to this court's duty to
consider the prospects of an intended appeal.”
[10]
The fact that the applicant faces a higher and stringent threshold in
an application of this nature was emphasized in
Notshokovu
v S
.
[1]
[11]
The arguments advanced by Mr. Maritz runs parallel and deviate from
what was the case for the respondents during the hearing.
In fact he
submitted that much himself. His submissions and the grounds of
appeal relied upon lacks substance and are merely nothing
but the
applicants disagreeing with the conclusions I made. In my view there
are no reasonable prospects of success on the reasons
that have been
advanced in my judgment. I refer specifically to paragraphs 32 to 40
of the aforementioned judgment. The issues
raised as the ground
of appeal were extensively dealt with.
[12]
It is so that several matters have been before the members of this
court involving these parties. However, I was not referred
to any
conflicting decision(s) to the extent that the application should be
granted to the Supreme Court of Appeal so that the
matter can be
finally laid to rest. The applicant does not meet the threshold laid
down in the provisions of
section 17.
[13]
I make the following order:-
13.1 The applications for
leave to appeal are dismissed with costs.
_____________
MATHEBULA,
J
On
behalf of Applicant: Adv. P. Zietsman SC assisted by
Adv.
J. H. Els
Instructed
by: Phatshoanne Henney Inc.
Bloemfontein
On
behalf of
Respondent
: Adv. N.G.D. Maritz
Instructed
by: Blair Attorneys
Bloemfontein
[1]
(157/15)
[2016] ZASCA 112