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[2016] ZAGPPHC 1102
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Thobani v Standard Bank of South Africa Ltd and Others (31159/2009) [2016] ZAGPPHC 1102 (9 December 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
Not
reportable
Not
of interest to other Judges
CASE
NO: 31159/2009
9/12/2016
In
the matter between:
ALLAUDDIN
HABIB
THOBANI
Applicant
and
STANDARD
BANK OF SOUTH AFRICA
LTD
First
Respondent
SHERIFF
OF THE SOUTH GAUTENG HIGH
COURT:
JOHANNESBURG
Second
Respondent
THE
REGISTRAR OF THE SOUTH GAUTENG HIGH COURT
Third
Respondent
REGISTRAR
OF DEEDS:
PRETORIA
Fourth
Respondent
PAUL
BOTTOMLEY
Fifth
Respondent
JUDGMENT
(Leave to appeal)
MAKGOKA,
J
[1]
This is an application for leave to appeal against the judgment and
order of this Court (per Goodey AJ) handed down on 28 October
2014.
In the absence of the learned acting Judge, the Deputy Judge
President has requested me to hear the application. The application,
by the applicant, Mr Thobani, is opposed by the first respondent,
Standard Bank (the bank). The rest of the respondents do not
take
part in the application. Ms
Hassim
SC
appears for Mr Thobani, while the bank is represented by Mr Reineke.
It is necessary to state the brief background.
[2]
During 2002 Mr Thobani concluded a loan agreement (the agreement)
with the bank. The agreement was secured by a first mortgage
bond
registered in favour of the bank over Mr Thobani's immovable property
(the property) subject to the bank's standard terms
and conditions.
On 16 July 2004 the bank obtained judgment against Mr Thobani as a
result of his failure to comply with the terms
of the agreement. The
property was declared to be especially executable. A number of
developments followed thereafter. Among others,
the parties concluded
certain payment arrangements, and a second mortgage bond was
registered over the property in favour of the
bank. As Mr Thobani was
still unable to meet his financial obligations, the bank, on 5
September 2008, obtained a writ of execution
against the property. On
21 April 2009 the property was sold at an auction to the fifth
respondent, Mr Bottomley.
[3]
During May 2009 Mr Thobani launched an application in this court to
set aside the writ of execution, referred to above, contending
that
it was null and void. Ancillary thereto, he sought consequential
orders for the setting aside of the sale in execution and
the
transfer of the property into the name of Mr Bottomley. The thrust of
the application was that the rights acquired by the bank
by virtue of
the judgment obtained in 2004 had become novated by the agreements
which the parties concluded subsequent to the granting
of that
judgment. That application came before Goodey AJ on 30 November 2010.
Mr Thobani appeared in person and made an oral application
for the
postponement of his application. The learned Judge, at the end of a
short
ex tempore
judgment, dismissed 'the application with
costs.'
[4]
From the order, it is not clear whether the application which was
dismissed is the one for a postponement or the main application.
This
is one of the difficulties in this application. In the course of the
judgment, it seems that the learned Judge was focussed
on the reasons
for refusing the postponement, and
per incuriam,
omitted to
deal with the merits of the main application. Just before he made
that order, the learned Judge made the following remarks:
'Now
we [have] an application in May 2009. We have a history about that.
It is accepted for purposes of this matter that you did
not know
about the date in December. It is also taken into account that you
had family problems and you had to go overseeas, but
at the end of
the day the balancing act must be [exercised] and it is a year now.
You want a three month further period.
Now
with your visits overseas, if you could not have sold the property
within a year since the 1[st] December, tomorrow it is exactly
a
year, how would you be able to sell it over a Christmas period, in a
matter of three months? But that not being the case, this
matter must
come to an end. You had more than enough time and unfortunately the
judgment is and the order I make is that:
1.
The application is dismissed with costs.'
[5]
From what is stated above, the learned Judge clearly meant to dismiss
both the postponement application and the main application.
This is
also the understanding of both counsel who appeared in the present
application (for leave to appeal) and on which basis
the application
was argued.
[6]
In his notice of application for leave
to
appeal, Mr Thobani
complains about the refusal of his application for a postponement.
That can be disposed of summarily. I have
no doubt that the learned
Judge properly exercised a discretion in this regard. There does not
appear to be any capriciousness
about the manner in which that aspect
was considered. There is therefore no basis to interfere with that
decision. However, Mr
Thobani also joins issue with the fact that the
court dismissed his main application. Understandably, he does not
state why that
decision is wrong, simply because the court did not
state any reasons for that decision.
[7]
In
Mphahlele v First National Bank of SA Ltd
[1999] ZACC 1
;
1999 (2) SA 667
(CC);
1999 (3) BCLR 253
(CC) para 12, the Constitutional Court stated
that furnishing reasons in a judgment 'explains to the parties, and
to the public
at large which has an interest in courts being open and
transparent, why a case is decided as it is. It is a discipline which
curbs
arbitrary judicial decisions.'
See
also
Strategic Liquor Services v Mvumbi NO and Others
2010 (2)
SA 92
(CC);
2009 (10) BCLR 1046
(CC) para 17 and
Stuttafords
Stores (Pty) Ltd and others v Salt of the Earth Creations (Ply) Ltd
2011 (1) SA 267
;
2010 (11) BCLR 1134
(CC).
[8]
In
Stuttafords,
the Constitutional Court referred with
approval the remarks made by former Chief Justice, Corbett CJ,
in an address
at the first orientation course for new judges under
the new constitutional dispensation:
'The
true test of a correct decision is when one is able to formulate
convincing reasons (and reasons which convince oneself) justifying
it. And there is no better discipline for a judge than writing (or
giving orally) such reasons. It is only when one does so that
it
becomes clear whether all the necessary links in a chain of reasoning
are present; whether inferences drawn . . . are properly
drawn;
whether the relevant principles of law are what you thought them to
be; whether or not counsel's argument is as well founded
as it
appeared to be at the hearing (or the converse); and so on.'
[9]
The decision in the present case (to dismiss the main application)
lacks the hallmarks referred to by the Constitutional Court.
The
parties have no basis to know why the application was dismissed. It
must be recalled that Mr Thobani raised a pertinent point
of law -
novation. Whether that point was well-taken or misplaced, could only
appear from the reasons of the court. In the absence
of such reasons,
it is difficult to see how, and on what basis, the order dismissing
the main application can be justified. Counsel
for the bank, Mr
Reineke,
urged me to consider that there is, in any event, no
merit to the point of novation relied on by Mr Thobani in the main
application.
By this, counsel effectively invited me to sit as an
appeal court in the judgment of Goodey AJ, which is, of course,
impermissible.
[10]
The common law test in an application for leave to appeal has always
been whether there are reasonable prospects that another
court, given
the same set of facts, might arrive to a different conclusion.
That test has been codified by s 17(1)(a)(i)
and(ii) of the Superior
Court Act 10 of 2013, in terms of which leave to appeal may only be
given where a judge is of the opinion
that the appeal would have
reasonable prospect of success, or that there is some compelling
reason why the appeal should be heard.
[11]
I take a view, primarily on the basis that Mr Thobani's main
application was dismissed without reasons, that there is a compelling
reason for the appeal to be heard. I am therefore inclined to grant
leave to appeal. I agree with Ms Hass m SC that there is nothing
that
warrants the attention of the Supreme Court of Appeal in the issues
raised here. The Full Court of this Division should hear
the appeal.
[12]
In the result the following order is made:
1.
The applicant, Mr Thobani, is granted leave to
appeal to the Full Court of this Division against the order made by
Goodey AJ on
30 November 2010, dismissing the applicant's application
to set aside the writ of execution dated 5 September 2008, and the
ancillary
relief thereto;
2.
The costs of this application are to be costs in
the appeal.
__________________
Makgoka
Judge
of the High Court
APPEARANCES:
For
the Applicant: S Hassim SC
Instructed
by: Badal Inc., Johannesburg
VFV
Attorneys, Pretoria
For
the First Respondent: M Reineke
Instructed
by: Ramsay Webber, Johannesburg
Andrea
Rae Attorney, Pretoria
No
appearances for the Second, Third, Fourth and Fifth Respondents.