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[2016] ZAGPPHC 105
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Saaiman N.O and Others v Saaiman and Others (53177/13) [2016] ZAGPPHC 105 (19 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
[NORTH GAUTENG HIGH
COURT, PRETORIA]
CASE NUMBER: 53177/13
DATE: 19 FEBRUARY 2016
In the matter between:
MAGDALENA ALETTA SAAIMAN
NO
............................................................
FIRST
APPLICANT
MAGDALENA ALETTA ENGELBRECHT
NO
...........................................
SECOND
APPLICANT
HERCULUS PHILLIPPUS SAAIMAN
NO
......................................................
THIRD
APPLICANT
SUSANNA JOHANNA BIRKHOLT2
NO
…..................................................
FOURTH
APPLICANT
NICOLAAS JACOBUS SAAIMAN
NO
.............................................................
FIFTH
APPLICANT
MADALENA ALETTA
SAAIMAN
.....................................................................
SIXTH
APPLICANT
And
ANETTE ELIZABETH
SAAIMAN
.................................................................
FIRST
RESPONDENT
PETRUS JAKOBUS VAN SCHALKWYK
NO
.........................................
SECOND
RESPONDENT
ANETTE ELIZABETH SAAIMAN
NO
........................................................
THIRD
RESPONDENT
PETRUS JAKOBUS VAN SCHALKWYK
NO
.........................................
FOURTH
RESPONDENT
MASTER OF THE HIGH COURT,
PRETORIA
..........................................
FIFTH
RESPONDENT
JUDGMENT ON THE
APPLICATION FOR LEAVE TO APPEAL
A.J. LOUW AJ
[1] When the application for leave to
appeal was called on the 11th February 2016 the First to the Fourth
Respondents raised an
objection to the proceedings based on the
provisions of Rule 7(1) of the Uniform Rules of Court. In terms of
the notice in terms
of Rule 7(2) that was served on the Applicants on
the 4th November 2015 the authority of the Applicants’ attorney
of record
is attacked. I dealt with this objection summarily and gave
an oral judgment in terms whereof the application for a postponement
of the application for leave to appeal so that the Plaintiff could
comply with the Rule 7(2) notice was refused and I similarly
refused
to entertain the notice in terms of Rule 7(2) on the grounds set
forth in the oral judgment. Thereafter the application
for leave to
appeal proceeded.
[2] The gist of the attack on the
judgment by the Applicants is that, in summary, I failed to take
proper cognisance of when a real,
genuine and bona fide dispute of
fact exists. Mr Van der Merwe SC approached the matter with reference
to the judgment of Wriahtman
trading as JW Construction v Headfour
(Ptv) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
at
375 G - 376 B {par 13). The complaint
essentially is that the answers given to the specific information
that the Applicants required
from the Respondents were lacking in
particularity. I was again referred to the questions raised in
paragraphs 65.1 to 65.11 of
the founding affidavit in support of this
submission.
[3] Mr Van der Merwe SC argued that the
answer in the answering affidavit on behalf of the Respondents was
vague, bold and sketchy
and in particular did not address the
questions raised by the Applicants in paragraphs 65.1 to 65.11 of
their founding affidavit.
In Wriahtman - supra at 376B Heher JA says
the following:
“There is thus a serious duty
imposed upon a legal advisor who settles an answering affidavit to
ascertain and engage with
facts which his client disputes and to
reflect such disputes fully and accurately in the answering
affidavit”
[4] A list of questions are not facts
that must be answered to. The Respondents were obliged to answer to
the Applicants' founding
affidavit. The answer that was given might
not be what the Applicants expected or might not satisfy the
Applicants in that the
questions posed were not answered. However,
the Respondents did meet the case made out by
giving an answer that a payment was
made. That payment is confirmed under oath and an explanation was
given regarding what had been
done with the funds. (I again say that
the application did not concern the wisdom of what was done, the only
question was whether
there was compliance with the order of Vorster,
AJ).
[5] I am still of the view that a
sufficient answer was provided. In this matter it must be borne in
mind that the Applicants, throughout,
had the obligation to prove
contempt of court beyond reasonable doubt.
[6] A sufficient answer was given and
the onus was not discharged by the Applicants.
[7] Again I have to say that I refrain
from deciding the question whether non- compliance with prayers 1 and
2 of the order of Vorster,
AJ could constitute contempt of court in
view of the difference of approach to ad pecuniam solvendam orders as
opposed to ad factum
praestandum orders. In view of the approach that
I followed in the judgment and in this application for leave to
appeal no finding
in that regard needs to be made.
[8] The complaint is raised in the
application for leave to appeal and in argument that there was a
short payment of the interest
as a payment of R2 137 000.00 was made
on the 17th June 2012 whereas the correctly calculated amount of the
judgment and interest
at the time amounted to R2 372 094.04. No such
case was made out in the founding papers and the question with regard
to short payment
was thus not pertinently raised, nor argued when the
matter was argued and is something that is a new issue in the
application
for leave to appeal. In the circumstances I refuse to
entertain this ground for leave to appeal.
[9] I find no reason to doubt that the
Second Respondent was entitled to invest the funds, as he did. I
accordingly cannot find
in favour of the Applicants on ground 4.2 of
the application for leave to appeal. No authority indicating that my
judgement in
this regard was wrong was referred to and I am still of
the opinion that the Second Respondent could have acted as he did.
[10] I am not persuaded that the
explanations referred to in paragraph 2.3 of the grounds for leave to
appeal are indeed irreconcilable
with one another.
[11] There was no request to refer the
matter to evidence by either party and I therefore found that the
matter must be dealt with
in terms of the well- known so-called
Plsscon-Evsns- approach to factual disputes. Essentially that means
that the application
was adjudicated on the version of the
Respondents. When the Applicants took the decision to bring an
application for contempt of
court instead of issuing summons or to
ask for the application to be referred to evidence, the Applicants
took the risk arising
from such approach. I am still convinced that
it cannot be said, on the papers as they stand, that the answer is
not bona fide
and therefore I could not find in favour of the
Applicants and still cannot so find.
[12] In paragraph 7 of the application
for leave to appeal it was stated that I erred because I did not
refer the matter to oral
evidence mero motu. At the hearing of the
application for leave to appeal Mr Van der Merwe SC did not persist
with this ground
of leave to appeal. This concession is undoubtedly
correct in light of the judgment of Santino Publishers CC v wavlite
Marketing
CC 2010(2)SA53fGSJ) p56 - 57, par 5.
[13] There is no reasonable prospect
that another Court might find in favour of the Applicants. In the
circumstances I find that
leave to appeal must be refused.
[14] The application for leave to
appeal is refused with costs.
AJ LOUW AJ