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[2016] ZAGPPHC 813
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Standard Bank of South Africa Limited v Sindile Project Enterprise CC and Others (32975/2014) [2016] ZAGPPHC 813 (9 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32975/2014
9/9/16
Reportable:
No
Of
interest to other judges: No
Revised.
In the
matter between:
The
Standard Bank of South Africa
Limited
Plaintiff
and
Sindile
Project Enterprise
CC
First
Defendant
Sindile
Sewula
Mthombeni
Second
Defendant
Thulani
Patrick
Mthombeni
Third
Defendant
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
MANAMELA,
AJ
Introduction
[1]
The plaintiff (and applicant for current purposes) (the Bank) applies
for leave to appeal a decision made on 29 April 2016 in
terms of
which the Bank's claim against the defendants was dismissed with
costs. The Bank had claimed repayment of monies advanced
in terms of
an overdraft facility to the first defendant (Sindile Project),
secured by suretyship provided by the second and third
defendants
(the Sureties). The Bank submits, in this application, that the
appeal "would have"
[1]
a reasonable prospect of success at appellate level, in the Full
Court of this Division, alternatively, the Supreme Court of Appeal.
The defendants oppose this application for leave to appeal in support
of the decision.
[2]
I followed the lead of the parties in evidently retaining their
citation as in the action. However, as already employed above,
I will
refer to the plaintiff as the Bank; first defendant as Sindile
Project and second and third defendants, collectively, as
the
Sureties. And when I collectively refer to Sindile Project and the
Sureties, I will use the reference defendants. These appellations
were also used in the judgment sought to be appealed.
[3]
The application was heard on 27 July 2016 and at the end thereof
requested counsel to file heads of argument. I am grateful
to have
received the heads of argument on 08 August 2016 and 23 August 2016.
There is also the added benefit of the transcription
of the trial
proceedings of 29 April 2016.
Grounds of appeal
[4]
The Bank's grounds of appeal are, in the main, that the Court erred,
in the following respect:
[4.1.] "in finding that the Plaintiff had failed to
establish the existence of an oral agreement with the First
Defendant";
[4.2.] "in concluding that the Plaintiff had failed
to prove the quantum of its claim";
[4.3.] "by finding that the Plaintiff had failed to
make out its claim against the Second and Third Defendants as
sureties",
and
[4.4.] by finding that the Plaintiff was unsuccessful
with its claim against the First, Second and Third Defendants".
[5]
The rest of what is stated to be part of the grounds of appeal
relates to the actual reasons for judgment, rather than the
substantive order in the judgment.
[2]
Therefore, I will specifically deal with the grounds in paragraphs
4.1 to 4.4 above. But, in fact I will only deal with the first
three
grounds, as the fourth ground is the consequence or outcome of
determination made in respect of the other grounds. I am satisfied
that this approach will also address what is stated in support of
those grounds. I use the grounds as subheadings for further
discussion.
Existence of an oral agreement
[6]
The Bank disputes the correctness of my finding that, other terms of
the oral agreement [besides the parties to the agreement;
date of
agreement and place of agreement], specifically with regard to the
rate of interest chargeable by the Bank, were not proven.
[3]
Closely related to this, was my finding that monies were indeed
advanced by the Bank to Sindile Project, but that there was no
evidence of acceptance by Sindile Project of the terms of overdraft
facility or the oral agreement, as pleaded and testified. The
Bank
submits that there was adequate evidence advanced at the trial to
support a contrary finding. Also that in the absence of
controverting
testimony on behalf of Sindile Project at the trial, I ought to have
accepted the Bank's version.
[7]
I did not find evidence, mainly from the CDDS Systems Notes or
computer notes used by the Bank, confirming terms of the oral
agreement between the parties. And quite importantly, in my view,
there was dearth of evidence to prove acceptance, expressly or
otherwise, of the terms of the oral agreement by Sindile Project. In
other words, other than the lack of evidence proving the terms
of the
alleged oral agreement, nothing was proffered to evince the meeting
of minds of the parties, especially from the side of
Sindile Project,
in acceptance of the alleged terms.
[8]
I will deal with the above issues further below in the discussion
relating to
quantum
issues, particularly regarding the bank
statements which formed part of the trial bundle.
Proof
of the quantum of claim
[9]
The Bank submits that the
quantum
of
its claim was proven through the testimony of its witnesses and the
certificates in terms of section 15(4) of the Electronic
Communications and Transactions Act 25 of 2002 (the ECTA).
[4]
It is submitted that I made an error in not admitting the bank
statements as part of the evidence before Court. For my part, I
did
not reject the bank statements or directly pronounce on their
admissibility. This is explained below.
[5]
[10]
There are two certificates in terms of the ECTA in the trial bundle.
During the trial only one certificate appearing on indexed
pages 17
to 18 (the First Certificate) was dealt with in the evidence, and not
the one on indexed pages 70-71 (the Second Certificate).
The Second
Certificate was only mentioned in the heads of argument (filed in
lieu of closing legal arguments).
[6]
[11]
The submission in the heads filed for the Bank was to the effect
that, Ms Jaca, the second witness for the Bank, dealt with
the Second
Certificate in her testimony. But this is obviously incorrect. Ms
Jaca dealt with only the First Certificate
[7]
and the other witness Ms Koobair could not verify the signatory to
the First Certificate.
[8]
I am aware that I did not point out this mistake in the judgment, but
in my view, not much, if anything, would have turned on it
at that
stage.
[12]
Therefore, the Bank's current argument that the bank statements were
before the Court is not alive to the fact that the Second
Certificate
wasn't dealt with at all. In argument both certificates are simply
conflated into one, when the Bank prepared two certificates.
I did
not understand the argument to be that the bank statements will be
admissible without their accompanying certificate in terms
of the
ECTA.
[13]
The importance of all these, in my view, is that the First
Certificate only deals with the CODS Systems Notes or computer
notes.
[9]
The Second Certificate deals with the bank statements. There bank
statements included in the trial bund le are for 27 February
to 31
March 2010;
[10]
29 February 2012
[11]
to 30 August 2014. They do reflect charges levied by the Bank from
time to time. Ms Koobair dealt with some of bank statements,
but not
with all of them. However, the bank statements on their own and with
the probative value (at the level of rebuttable proof)
statutorily
awarded by a certificate in terms of section 15(4) of the ECTA may,
perhaps, have assisted the Bank in proving the
quantum
of its claim. I did not deal with the Second
Certificate at all as same, in my view, wasn't dealt with during the
trial.
[14]
I was referred during argument and later in the filed heads of
argument in this regard, by Mr MT Shepherd appearing at the
hearing
for the Bank, to the decision of the Supreme Court of Appeal in
Firstrand Bank v Venter.
[12]
This was mainly to support the argument that
the bank statements ought to be accepted as they were not placed in
dispute when the
Bank's witness testified thereon. This may be so,
but I still had a problem in accepting, as part of the evidence
before the Court,
the bank statements not identified in the ECTA
certificate before the Court: the First Certificate. Besides, I find
the facts in
Firstrand Bank v Venter
very
distinguishable from this matter, especially as in that decision
there was testimony regarding the certificate in terms of
the ECTA
and the bank statements were clearly identified,
[13]
which is not the case herein.
[15]
Obviously, in my view, there would also have been, apart from
quantum
issues, a need to prove that the statements
were received or ought to have been received by Sindile Project, as
they were properly
addressed and dispatched to an address of Sindile
Project.
[14]
This wasn't done.
Claim
against the Sureties
[16]
It is also submitted that I was wrong not to find in favour of the
Bank against the Sureties. The Sureties had bound themselves,
in
terms of the suretyship agreement, that a certificate of balance
produced by the Bank would constitute
prima facie
proof of
indebtedness against them. The Bank argues that this was sufficient
to find in its favour in respect of the Sureties, despite
the lack of
success in the claim against Sindile Project, as the principal
debtor.
[17]
In this regard, my finding was that the defence in
rem
obtained for the Sureties as opposed to a
defence
in personam
to
the principal debtor.
[15]
Therefore, in my view, the Bank could not succeed against the
Sureties when they were unsuccessful in establishing a claim against
Sindile Project.
Conclusion
and Order
[18]
As indicated above, section 17(1)(a) of the Superior Courts Act
requires that leave to appeal be granted when the Court if
of the
opinion that the intended appeal "would have" a reasonable
prospect of success. It has already been found that
this signified a
raised threshold (indicating some measure of certainty)
[16]
from the previous requirement that an applicant for leave needed to
show a reasonable prospect that another court might come to
a
different conclusion.
[17]
In my view the Bank did not meet this requirement, thus the
application fails. Costs will follow this result.
[19]
In the premises, I make the following order:
(a) The application for leave to appeal is dismissed
with costs.
_______________________
K.
La M. Manamela
Acting
Judge of the High Court
09
September 2016
Appearances:
For the
Plaintiff
:
Adv MT Shepherd
Instructed
by
:
Findlay & Niemeyer Attorneys Pretoria
For the
1st, 2nd and 3rd Defendants :
Adv HP West
Instructed
by
:
Locketts Attorneys Pretoria
[1]
In terms of section 17(1 )(a) of the Superior Courts Act I 0 of 201
3 leave to appeal may only be given when the Court is of
the opinion
that the intended appeal "would have" a reasonable
prospect of success. This is said to signify a raised
threshold from
provisions of the repealed Supreme Court Act 59 of 1959 and
"indicates a measure of certainty that another
court will
differ from the court whose judgment is sought to be appealed
against". See the unreported decision of the Land
Claims Court
by Bertelsmann J in The Mount Chevaux Trust v Tina Goosen & 18
Others (LCC14 R/2014) (03 November 2014) at par
6; cited with
approval by the Full Court of this Division in the decision in
Acting National Director of Public Prosecutions
& Two Others v
Democratic Alliance, In re Democratic Alliance v Acting National
Director of Public Prosecutions & Three
Others (19577/2009) GDHC
(24 June 201 6) at par 25.
[2]
See Western .Johannesburg Rent Board and Another v Ursula Mansions
(Pty) Ltd
1948 (3) SA 353
(A) at 355 cited with approval in the
recent decision in Cape Empowerment Trust Ltd v Fisher Hoffman
Sithole 201
3 (5) SA 1
83 (SCA) at par 39.
[3]
See par 34. read with pars 31 -33. of the judgment.
[4]
See pars 24 -26 of the judgment.
[5]
See pars 25 and 26 of the judgment.
[6]
See par 9.7 and its accompanying footnote 38 of the Bank's heads of
argument dated 04 March 2016.
[7]
See from line 10 on p 41 up to line 14 on p 42 of the transcript.
[8]
See lines 6-8 on p 9 of the transcript.
[9]
See par 11 of the judgment for a brief narration of the mechanics of
the CCDS computer system.
[10]
See trial bundle on indexed pp 72-83.
[11]
See trial bundle on indexed pp 84-252.
[12]
(829/11)
[2012] ZASCA 117
(14 September 2012).
[13]
See Firstrand Bank v Venter at pars 16 and 18.
[14]
See Firstrand Bank v Venter at pars 14 and 17.
[15]
See pars 35 and 36 of the judgment.
[16]
See The Mount Chevaux: Trust v Tina Goosen & I R Others; A cling
National Director of Public Prosecutions & Two Others
v
Democratic Alliance, In re Democratic Alliance v Acting National
Director of Public Prosecutions & Two Others (both unreported
decisions) cited in par 1 and its accompanying footnote 1
[17]
See Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at
343H.