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[2017] ZAGPPHC 166
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Toerien v Standard Bank of South Africa Limited (91022/2015) [2017] ZAGPPHC 166 (13 February 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 91022/2015
DATE: 13/2/2017
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
NOT REVISED
In
the matter between:
TREVOR
KEITH TOERIEN
Applicant
And
STANDARD
BANK OF SOUTH AFRICA LIMITED
Respondent
JUDGMENT
(Leave to appeal)
MAKGOKA,
J
1.
This is an application for leave to appeal against the
judgment and order of this court handed down on 31 March 2016. In
terms of
the order of the judgment, the respondent's application for
summary judgment was granted against the applicant (Mr Tourien). Mr
Toerien's immovable property was also declared specially executable,
and a warrant of execution was authorised against it.
2.
Both in the main application and the application for
leave to appeal, Mr Toerien appeared in person.
3.
In his application for leave to appeal, he advances two
generic grounds of appeal, namely that the court erred in not
refusing summary
judgment, and that the court should have found that
the matter should be referred to trial. During argument, nothing new
was proffered
by Mr Toerien, who only submitted to the effect that he
was 'not a thing, but a living being.'
4.
The common law test in an application for leave to
appeal has always been whether there are reasonable prospects that
another court,
given the same set of facts,
might
arrive
to
a
different
conclusion.
That
test
has
been
codified
by
s
17(1)(a)(i) and(ii) of the Superior Court Act 10 of 2013, in terms of
which leave to appeal may only be given where a judge is
of the
opinion that the appeal would have reasonable prospect of success, or
that there is some compelling reason why the appeal
should be heard.
It is clear that by the use of 'would' in s 17, the legislature
intended a heightened threshold than the common
law one.
5.
I have had a careful and dispassionate regard to the
judgment against which leave to appeal is sought. Given what has been
considered
there, I conclude that the appeal would not have any
reasonable prospect of success. Neither is there is any compelling
reason
why the appeal should be heard. The sum total of the above is
that the application for leave to appeal is unmeritorious and falls
to fail.
6.
Before I conclude, I need to place on record and explain
why this application is only heard now, about 8 months since the
notice
of application for leave was delivered. As stated earlier, Mr
Toerien delivered his application for leave on 29 April 2016. Several
attempts were made by my office, from June to November 2016, to
communicate with Mr Toerien to arrange for a suitable date for
the
hearing of the application. They were all in vain, as Mr Toerien was
either not available on suggested dates, or his communication
channels had allegedly changed. Ultimately, I decided to enroll the
matter for 1O February 2017. On bei.ng informed of the date,
the
respondent's attorneys caused a notice of set down to be served on Mr
Toerien. Perhaps this explains Mr Toerien's attendance
to argue the
application.
7.
In the result the following order is made:
The application for leave
to appeal is dismissed with costs.
_______________________
TM
Makgoka
Judge
of the High Court
Date
heard: 10 February 2017
Date
of judgment: 13 February 2017
For
the Applicant: In person
For
the Respondent: Mr D. Raath (Attorney)
Firm:
Van Hulsteyns, Sandton