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[2016] ZAGPPHC 756
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Principle Education And Marketing CC and Another v Nedbank Limited t/a MFC (11810/2016) [2016] ZAGPPHC 756 (22 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case number: 11810/2016
DATE: 22 AUGUST 2016
In the matter between:
PRINCIPLE
EDUCATION AND MARKETING CC
...............................
First
Applicant/Defendant
TOERIEN, TREVOR
KEITH
.................................................................
Second
Applicant/Defendant
And
NEDBANK
LIMITED TRADING AS
MFC
........................................................
Respondent/Plaintiff
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
Date
of hearing: 10 August 2016
1.
This is an application for leave to appeal against the
whole of the order handed down on 21 April 2016, against the first
applicant,
Principle Education and Marketing CC (“the
corporation”), and in respect of which reasons for judgment
were handed
down on 13 June 2016.
2.
The application for leave to appeal could only be
brought by the first applicant, being the corporation, this since
summary judgment
was confined to relief against the first applicant.
3.
In the notice of application for leave to appeal, the
corporation advances two grounds for leave sought. They are: firstly,
that
the Court erred in not refusing summary judgment, and secondly,
that the matter should have been referred to trial.
4.
In argument before Court on 10 August 2016, Mr Trevor
Toerien, on behalf of the corporation, elaborated further on the
above argument.
He argued that summary judgment could only be granted
on the basis of a liquid document, and that the respondent, Nedbank
Limited
(“Nedbank”), did not rely for its cause of action
on a liquid document.
5.
This argument is baseless. It is axiomatic that Rule 32
of the Uniform Rules of Court plainly sanctions the right of Nedbank
to
apply for summary judgment on the basis sought by it in casu. I
refer in this regard to the provisions of Rule 32(1 )(b) and (c),
which permit summary judgment for a liquidated amount in money and
for delivery of specified movable property. This is the relief
which
was sought by Nedbank.
6.
The corporation took issue with the omission by Nedbank
to produce the original of the instalment sale agreement (“the
agreement”),
and argued that this was fatal to its case. On 15
December 2011, Nedbank had sold a seven seater Hyundai Sante Fe motor
vehicle
to the corporation, in terms of the agreement.
7.
In argument before Court, however, Mr Toerien did not
dispute the authenticity of the signature on the agreement, nor the
authority
of the signatory, being Mr Toerien himself, qua member of
the corporation.
8.
I reiterate what was stated by Mr Toerien on behalf of
the corporation in the response to the combined summons, namely:
“There
is no dispute with any of the facts in the instant matter
."
9.
This being the case, it was competent for Nedbank to
have produced a true copy of the original of the agreement and it was
within
the discretion of the Court to accept same as such.
10.
In argument for Nedbank, my attention was drawn to the
case of
Maioia v Nitro
Securitisation 2012(1) SA 226 SC A. I
quote from paragraph 25
F
et sequitur, at page
232:
"The
purpose of summary judgment is to “enable a plaintiff with a
dear 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 plaintiffs 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 plaintiffs 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
11.
In the premises, I am of the view that the first
applicant, being the corporation, does not enjoy a reasonable
prospect of success
on appeal, this because no bona fide defence was
raised to the claims against it, and that leave to appeal should
accordingly be
refused, with costs following the result. My grounds
for granting summary judgment are more fully adumbrated in my written
judgment
handed down on 13 June 2016.
12.
The grounds for appeal having been without foundation,
there is no reason why an exemplary order for costs should not be
granted.
13.
The following order is granted:
a.
the first applicant’s application for leave to
appeal against the order dated 21 April 2016 read with the judgment
dated 13
June 2016 is dismissed;
b.
the first applicant is directed to pay the costs of the
application on a scale as between attorney and client.
T BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA 22 August 2016
Appearances
For the First Applicant/Defendant: Mr
T K Toerien
Instructed by: No legal
representation
Counsel for Respondent/Plaintiff: Adv
J P van den Berg
Instructed by: VHI Attorneys