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[2016] ZAGPPHC 210
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Etsane v Absa Bank Ltd (33071/2012) [2016] ZAGPPHC 210 (15 April 2016)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
15/04/16
CASE
NUMBER 33071/2012
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
MOLOKO
HECTOR
ETSANE APPLICANT
And
ABSA
BANK
LIMITED RESPONDENT
JUDGMENT
MAVUNDLA.
J,
[1]
The applicant, the defendant in the action, applies for leave to
appeal to the Full Bench of this Division against the whole
of the
judgment and order granted by this Court against him on the 15
January 2016 in terms of which the applicant was ordered
to pay:
1.1. the respondent (
plaintiff in the action) the amount of R 3 834 183 . 08;
1.2. That interest on the
abovementioned amount at the rate of 9% per annum, calculated and
capitalised monthly from 5 May 2014
to date of final payment, both
dates inclusive;
1.3. That the Defendant
be and is ordered to pay all the Plaintiff's costs of the action
under case number 33071
I
2012, to be taxed on a scale as
between attorney and client;
1.4. That the Defendant
be and is ordered to pay costs of this application to be taxed
on a scale as between attorney and
client;
1.5. That the Defendant's
following immovable property be and is declared specially executable:
ERF
[…] Silver lakes Township,
Registration
Division J. R.,
Province
Gauteng
Measuring
1050 (One Thousand and Fifty) Square metres.
[2]
The grounds upon which leave to appeal is sought are,
inter alia,
that this Court erred:
2.1. in finding that the
settlement agreement which was made an order of court on the 20 May
2014 entitled the respondent to a monetary
claims;
2.2. in finding that the
respondent was entitled to an order declaring applicant's immovable
property specially executable and directing
the registrar to issue a
warrant of execution against the applicant's immovable property, in
the absence of a monetary judgment;
2.3. in not finding that
the settlement agreement upon which the respondent's application was
based, constituted a compromise between
the parties;
2.4. in not applying the
principles applicable to the application by the respondent in terms
of Rule 41(4).
2.5. the respondent to
the order.
[3]
It is trite that in an application for leave to appeal, the question
to be asked is whether there are reasonable prospects of
success on
appeal.
[1]
[4]
Even if the court believes in the correctness of its judgment, it
should nonetheless grant leave to appeal, if there is a possibility
that a court of appeal might conclude differently;
vide
R v Kuzwayo
[2]
Westinghouse
Brake
&
Equip v
Bilger Engineering.
[3]
[5]
The Court must have regard to the importance of the matter to both
parties, the grounds upon which leave to appeal is premised,
and
whether leave to appeal is bona fide and not frivolously sought, in
the exercise of its discretion. If the granting of leave
to appeal
would expedite the resolution of the dispute between the parties,
then the Court must be inclined to grant leave to appeal,
bearing in
mind whether there is a prospect of success that another court might
find differently to the decision appealed against;
vide
New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another;
Pharmaceutical Society of South Africa v Minister of Health
and
Another
[4]
.
[6]
The Court must take into account the substantial importance of the
matter to both parties
[5]
although not decisive in the consideration of whether to or not to
grant leave to appeal
[6]
.
[7]
I propose to, in the exercise of my discretion, grant leave to appeal
in this matter, without traversing the submissions made
on behalf of
both parties, although I do bear these in mind. I take into account
that the order granted by this court, invariably
impacts negatively
on the constitutional rights of the applicant to housing, in that,
the declaration of his immovable property
deprives both him and his
family consisting of,
inter alia,
a minor child who is still
of school going age in the area where the relevant immovable property
is located. This as much came out
in the main application upon which
the order sought to appeal is premised.
[8]
I further take into account the fact that the respondent, which is
common cause, did not comply with the Court order obliging
him to
re-activate the account into which the applicant was supposed to
effect his payments. It was submitted on behalf of the
applicant that
the respondent could not claim unless it had complied with this
order, which put an end to the original
causa.
I am persuaded
that there are reasonable prospect of success on appeal, that another
Court might find that this Court misdirected
itself on this issue and
should have found that there was a compromise.
[9]
It was further submitted on behalf of the applicant that the
agreement which subsequently caused a compromise, did not make
provision for the respondent to claim the whole amount. In so far as
the intention of the parties, it was submitted that there
was a
dispute of fact as to what the true intention of the parties was,
which could not be resolved on affidavit and therefore
warranting
that the respondent's application should have been dismissed. I am
persuaded that on this issue there are reasonable
prospect of success
on appeal and the latter court finding in favour of the applicant.
[10]
In the result I make the following order:
1. That leave to appeal
to the Full Bench of this Division is granted;
2. That costs of this
application be costs in the appeal.
______________________
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 12
I
04 / 2016
DATE
OF JUDGMENT : 15
I
04 /
2016
APPLICANTS’
ADV
: ADV A. P. ELLIS
INSTRUCTED
BY
: MURPHY KWAPE MARITZ ATTORNEYS
RESPONDENTS’
ADV : ADV R. RAUBENSHEIMER
INSTRUCTED
BY
: TIM DU TOIT & INC
[1]
Vide section 17(1)(a) of the Superior Courts Act No 59 of 1
959; Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at 531
B-E.
[2]
1949 (3) 761 (AD) at 764-765;
[3]
1986 (2) SA 555
(A D) at 564C-E.
[4]
2005 (3) SA 230
(CPD) at 236H-237A.
[5]
Westinghouse Brakes & Equip v Bilger Engineering
1986 (2) SA 555
(A D) at 5601
[6]
Vide Janit v·Van Den Heever and Another NNO (No 2) 2001 (1)
SA (WLD) at 1065A-B.