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[2017] ZAGPPHC 810
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Von Landsberg and Another v De Beer (36842/2016) [2017] ZAGPPHC 810 (23 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 36842/2016
Not
reportable
Not
of interest to other judges
Revised
23/2/2017
IN
THE MATTER BETWEEN
:
HEINRICH VON
LANDSBERG
1
st
Applicant/1
st
Defendant
UNIVERSAL
PULSE TRADING 367 (PTY) LTD
(Registration
number 2010/017403/07)
2nd
Applicant/2nd Defendant
And
HENDRIK
CHRISTOFFEL DE
BEER
Respondent/Plaintiff
JUDGMENT
(In
the application for leave to appeal)
KOLLAPENJ:
1.
The applicants (the defendants in the main action) have
applied for leave to appeal against the whole of the judgment and
order
of this Court of the 26th of July 2016 when summary judgment
was granted in favour of the respondent in the sum of R2 989 208.00
together with interest and costs. The grounds upon which the
application is advanced are set out in some detail in the application
for leave to appeal. The applicant also seeks condonation for the
late filing of the application for leave to appeal, as well as
the
late request for the transcription of the judgment of the 26th of
July 2016.
2.
The respondent opposes both applications.
Condonation
3.
It appears that on the 28th of July 2016 and thereafter
on the
2nd
of August 2016, the applicants caused
a Notice of Application for leave to appeal to be served on the
respondent's attorneys. The
notice however was not filed in
accordance with the Practise Directive of this Division in that it
appears to have been filed with
the General Office of the Registrar
of the Court as opposed to the Civil Appeals Registrar. The applicant
seeks to explain this
as an oversight on the part of a member of
staff of its attorneys while the respondent contends that it
constituted a deliberate
effort to delay the prosecution of the
appeal.
4.
It is also common cause that the Applicants only applied
for a transcript of the judgment of this Court of the 26th of July
2016,
on the 14th of December 2016 and all that the applicants offer
by way of explanation is that this was an oversight.
5.
It is not in dispute that the Practice Directive of this
Division insofar as it relates to Leave to Appeal in Civil Matters,
clearly
provides that the application for leave to appeal must be
filed with the Registrar in charge of civil appeals and in addition
places
an obligation on the applicant to forthwith take the necessary
steps to cause the judgment to be transcribed.
6.
While the explanation offered by the applicant in
respect of the transcription at least is lacking in detail and
particularity,
my view is that the interests of justice insofar as
they relate to the causing of unnecessary delay, compel me in the
direction
of granting the condonation sought. However the opposition
to this part of the relief was not unreasonable and certainly on the
facts was justifiable with the result that the costs of the
application for condonation should be borne by the applicant. I
intend
to include that as part of the order I will make.
The
merits of the application
7.
In argument Mr du Plessis SC dealt with four issues
(without abandoning the other grounds raised in the application for
leave to
appeal). They were:
i.
There was no basis to make an order for joint and
several liability:
When
I have regard to the Particulars of Claim, the respondent relies on
the conclusion of a joint venture between itself and the
applicants
and sets out in sufficient particularity the details of the joint
venture as well as the conduct of both applicants
in acting in
advance of the joint venture including the sale of properties and the
receipt of monies, and arising out of that,
concludes that the
applicants are indeed jointly and severally liable to him. I am
satisfied that a proper basis for joint and
several liability has
been established in the formulation of the respondent's claim and
this point is not sustainable.
ii.
That Annexure E (being a calculation prepared by the
respondent and revised by the first applicant purporting to depict
the flow
of money arising out of the transaction and the parties'
share in the joint venture), does not accord with the details of the
transaction
the joint venture would be involved in, and as set out in
greater detail in the Particulars of Claim. The Court in granting
summary
judgment accepted Annexure E (as amended by the first
applicant) as an acknowledgement by the applicants of their liability
to
the respondent. It hardly matters whether it accords with the full
detail of the envisaged transactions and even if it does not,
it can
hardly detract from the conclusion to be drawn from it. In any event
in his affidavit opposing summary judgment, the first
applicant (in
his personal capacity as well as in his capacity as director of the
second applicant) says the following:
"The
schedule annexed by the plaintiff to its particulars of claim as
Annexure E is also dated. I dealt with this dated schedule
and with
the updated schedule in detail in my affidavit filed in the Anton
Pillar proceedings. A copy of the updated schedule is
annexed hereto
as Annexure SJ4. The plaintiff is accordingly fully aware of the fact
that his current claim is based on an incorrect
schedule and that the
allegations in his particulars of claim are incorrect.
"There
was no complaint then that the schedule was incomplete or at variance
with the proposed transactions and as indicated,
the applicants put
up the amended schedule as a corrected version of the schedule
prepared by the respondent. They can hardly now
seek to distance
themselves from it.
8.
The other arguments raised deal with what has been
described as total confusion with regard to which of the entities
entered into
which
agreements, and as well as
there being no allegation as to where the monies derived from the
joint venture were paid into. Apart
from the fact that these issues
were never canvassed in the affidavit opposing summary judgment, the
Particulars of Claim are clear
with regard to the parties and the
terms of the joint venture and the manner in which the applicants
sold the properties and received
the monies to which the respondent
claims entitlement, as part of the joint venture. This basis of the
attack on the judgment of
this Court also is lacking in merit.
9.
With regard to the other grounds raised, they are all
dealt with comprehensively in the judgment of the 26th of July 2016
and my
view is that having regard to all the grounds upon which the
applicants place reliance, it can hardly be said that the appeal
would
have a reasonable prospect of success.
10.
Finally I wish to refer to the
dicta
in
MAJOLA
v
NITRO SECURITISATION
2012
(1) SA 226
,
where the Court remarked at
paragraph 25 that:
"The purpose
of summary judgment is to 'enable a plaintiff with a clear case to
obtain swift enforcement of a claim against
a defendant who has no
real defence to that claim'. It is a procedure that is intended 'to
prevent sham defences from defeating
the rights of parties by delay,
and at the same time causing great loss to plaintiffe who were
endeavouring to enforce their rights'.
If a court hearing an
application for summary judgment is satisfied that a defendant has no
bona fide defence to a plaintiff's
claim and grants summary judgment
as a consequence, it should be slow thereafter to grant leave to
appeal, lest it undermine the
very purpose of the procedure."
I
fully associate myself with the above remarks, which have relevance
in these proceedings.
ORDER
11.
In the circumstances I make the following order:
i.
Condonation for the late filing of the application for
leave to appeal and the ordering of the transcription of the judgment
is
granted.
ii.
The
applicants are ordered to pay the costs of the application for
condonation, which costs are to include the costs of two counsel.
iii.
The
application for leave to appeal is dismissed with costs including the
costs of two counsel.
36482/2016
HEARD
ON: 17 February 2017
DATE
OF JUDGMENT: 23/02/2017
APPEARANCES
FOR
THE 1st & 2nd APPLICANTS: Adv. R du Plessis SC
INSTRUCTED
BY: Johann de Wet Attorneys (ref.: Johann de Wet/RUOOOl)
FOR
THE RESPONDENT Adv. CA da Silva SC
INSTRUCTED
BY: Hennie Kotze Attorneys (ref.: H N Kotze)