About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 642
|
|
Nedbank Limited v Kloppers (66933/2015) [2016] ZAGPPHC 642 (29 July 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 29 JULY 2016
CASE
NO: 66933/2015
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
In
the matter between:
NEDBANK
LIMITED
APPLICANT
and
HERMANUS
PHILLIPUS
KLOPPERS
RESPONDENT
J U D G M E N
T
MALI
J
[1] The applicant a financial service
provider, herein seeks an interim order to attach and seize four
motor vehicles in the possession
of the respondent pending
finalisation of an action pending before this Court as well as a
second action pending in the Randburg
Magistrate's Court.
[2] The basis of the applicant's case
is that it has cancelled all four of the instalment sale agreements
between the applicant
and the respondent. The applicant's purpose for
seeking the relief is for the safe keeping of the said vehicles.
[3] The respondent has raised two
points
in limine,
firstly
that the affidavit of the applicant's deponent is defective because
the deponent stated in her founding affidavit that
she is a major
female and later stated
he
knows and understands... It is not disputed by the
respondent that the said point
in
limine
has not been raised in its answering affidavit. The
said point
in limine
is
only raised for the first time in the heads of argument.
[4] The respondent relies on
ABSA
BANK LTD
v
BOTHA NO
AND OTHERS
[1]
.
The respondent's
reliance on Absa's
supra
is
misplaced because the case dealt with affidavits supporting summary
judgment applications. Because of the nature of the summary
judgment
applications.
[5]
Having
regard
to the
above
the first
point
in limine
must
fail.
[6]
The second point
in limine
raised
by the respondent is that the matter is
lis pendens
because
the applicant on 20 October 2015 applied for summary judgment
against the respondent. The application for summary judgment
is
based on the same cause of action and
seeks the return of the
same vehicles sought for safe keeping in the
present application. The
application was
postponed.
[7]
It is trite law that in order to succeed with a plea of
lis
alibi
pendens
four
requirements have
to
be
complied
with, namely:-
•
Pending
litigations;
•
Between
the same parties or their
privies;
•
Based
on the same cause of
action;
•
In
respect of the same subject matter.
[8]
In
NESTLE (SOUTH
AFRICA) (PTY) LTD
v
MARS INC
[2]
,
it is held;
"The defence of lis alibi
pendens share features in common with
the defence of
res judicata because they have
a
common
underlying principle, which is that
there should be finality in litigation. Once
a
suit has been commenced before
a
tribunal that is competent to adjudicate upon it, the suit
must generally be brought to its
conclusion before the
tribunal and should not be replicated (lis alibi pendens). By the
same token the suit will not be permitted
to revive once it
has been brought to its proper conclusion (res judicata). The
same suit between the same parties, should be brought once and
finally.
11
[9] In
GEORGE TALBOT SPENCER AND
OTHERS
v
XOLISA
KENNEDY MEMANI AND OTHERS
[3]
,
Meyer AJA stated the
following:
To
refuse to allow the objection of lis alibi pendens simplybecause the
plaintiffs in the action did not spell out the grounds
upon which
Memani and the trust rely in the dispute about which
a
declaration is sought would amount to an elevation of form
over substance. The trial court will have to decide upon the very
matters
which the court a quo was asked to decide upon as far as the
directorship of Memani is concerned. The pending earlier action and
the later application involve the same parties........ There are
compelling reasons why the /is which was first commenced should
be
the one to proceed. A decision of pplication will not bring finality
in the litigation between the parties but merely result
in
a
piecemeal adjudication of the issues in dispute between
them..... Furthermore
a
weighty
consideration is the one mentioned by Navsa JA in Socratous. This
consideration is summarised as follows in the headnote
of that
judgment: ' South African courts are under severe
pressure
due to congested court rolls
1
and the defence of lis
pendens must be allowed
to operate in order to stem unwarranted proliferation of litigation
involving the same based on the same
cause of
action and related to the
same
subject-matter'."
[10] The applicant does not dispute
that there are pending litigations between the applicant and the
respondent. On the applicants
own version it seeks interim relief
because of the pending litigation in respect of the same cause of
action.
[11] The applicant's argument that the
matter is not
lis pendens
is
that it seeks a different relief from what is sought in the summary
judgment. The applicant submits that in the summary judgment
the
applicant seeks a final relief and in the present application it
seeks an interim relief.
[12] The applicant further referred the
court to
GELDENHUYS
v
KOTZE
[4]
.
The principle
established in Geldenhuys is that the court has judicial discretion
not to apply
lis pendens
based on the merits of the case. To state the obvious
Geldenhuys was decided in a different time. As stated in George
Talbot Spencer
above, the weight consideration regarding the
congestion of our courts rolls is a reality today. Even on
application of Geldenhuys
supra
the discretion do not apply
lis
pendens
should be cautiously exercised
[13] Furthermore,
I find nothing in law to the effect that despite meeting
all
the requirements of
lis
pendens,
a
difference in relief should be
a consideration.
[14]
In
the
result
the
point in limine
is
upheld.
[15]
I
therefore
make
the
following order;
15.1
The application is
dismissed with costs.
N.P.
MALI
JUDGE
OF THE HIGH
COURT
Counsel
for the
Applicant:Adv.
J P
van
den
Berg
Instructed
by:VHI
ATIORNEYS
Counsel
for the
Respondent:
Adv.
J M Prinsloo
Instructed
by:STRAUSS DE WAAL
ATIORNEYS
Date
of Hearing:
19
April
2016
Date
of
Judgment:29
July
2016
[1]
2013 (5) SA 563 (GNP)
[2]
2001 (4) SA 542 (SCA)
[3]
SCA 675/2012 at paragraphs 14
and15
[4]
1964 (2) SA 617
OFSD