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
>>
2013
>>
[2013] ZAGPPHC 216
|
|
Malatji and Another v Standard Bank of South Africa (77215/2009) [2013] ZAGPPHC 216 (26 July 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 77215/2009
Date:
26 July 2013
In
the matter between:
STANELEY
MALATJI
...............................................................
1st
Applicant
MASIYE
PETER MALATJI
….................................................
2nd
Applicant
and
STANDARD
BANK OF SOUTH AFRICA
…..........................
Respondent
JUDGMENT
PRETORIUS
J.
[1]
The applicants are applying for leave to appeal to the Full Bench of
this court against an order made on 24 May 2013.
[2]The
order which was made:
“
1.
The first respondent is ordered to comply with the provisions of
section 129(1) of the National Credit Act, within 7 days of
this
order being granted;
2.
The applicant has to enroll the application within 30 days after the
first respondent had complied with the provisions of section
129(1)
of the National Credit Act;
3.
Costs to be costs in the application for rescission."
[3]The
grounds of appeal was set out as:
“
a)
Her Ladyship erred in not finding that the Respondent failed to
follow due processes as contemplated in terms of the National
Credit
Act;
b)
Her Ladyship erred in finding that the Respondent, by complying with
section 129 (1) of the National Credit Act, will automatically
cure
the defect;
c)
Her Ladyship erred in ordering the Applicant to set the matter down
immediately after receiving the section 129 letter in terms
of the
National Credit Act from the Respondent following the due processes
contemplated therein. ”
[4]A
point in limine was raised by the respondent that the order of 24 May
2013 is an interlocutory order and therefore cannot be
appealed.
Section 20 (1) of the Supreme Court Act 59 of 1959 provides:
“
(1)
An appeal from a judgment or order of the court of a provincial or
local division in any civil proceedings or against any judgment
or
order of such a court given on appeal shall be heard by the appellate
division or a full court, as the case may be. ”
(Court’s
emphasis)
[5]
It is clear from the order that it did not finalize the matter in any
way. There is no indication in the judgment that the court
had dealt
with the merits of the application as the court only found that the
respondent had not complied with the provisions of
section 129 of the
National Credit Act and provided an opportunity for the respondent to
rectify it.
[6]
In this instance the order is referred back to the court a quo for
final consideration and is therefore not a final order. The
court
clearly stated in the judgment:
“
The
fact alone cannot dispose of the matter, but should be rectified and
then the rescission application can be dealt with. ”
[7]
In Zweni v Minister of Law and Order
1993 (1) SA 523
(A) Harms AJA
held at p 536 A - C:
“
In
the light of these tests and in view of the fact that a ruling is the
antithesis of a judgment or order, it appears to me that,
generally
speaking, a non-appealable decision (ruling) is a decision which is
not final (because the Court of first
instance
is entitled to alter it), nor definitive of the rights of the parties
nor has the effect of disposing of at least a substantial
portion of
the relief claimed in the main proceedings. ” (Court’s
emphasis)
[8]
In Carter v Haworth 2009(5) SA 446 (SCA) Mthiyane JA held at
paragraph 11 and 12:
“
[11]
But this litmus test only finds application when the court concerned
has pronounced conclusively on the issues submitted to
it for
determination. The difficulty with the judgment of the court below is
that we do not even get to the application of the
test in Zweni
because upon a proper reading of the judgment the issues in the case
do not appear to have been brought to final
conclusion.
[12]
In my view the weakest link in the judgment lies in the absence of an
order. I do not think there is a part of a judgment that
provides a
stronger indication of finality than an order at the end. If the
order is removed or omitted the judgment is rendered
ineffective and
so, too, its element of finality.”
[9]
I have listened to the arguments of counsel of both the applicants
and the respondent and have considered the abovementioned
authorities
which set out clearly when an order is appealable. If I apply the
tests as set out in the authorities I can only come
to the conclusion
that the judgement of 24 May 2013 by this court is not appealable. It
did not dispose of the matter in any way
and due to the court’s
finding that the rescission application must still be dealt with, it
cannot be regarded as anything
but an interlocutory finding.
[10]
I have considered the arguments on costs, but find that, although
mistaken, the applicants were not vexatious or grossly negligent
in
bringing this application.
[11]
The order:
1.
The application for leave to appeal is dismissed with costs.
____________________
Judge
Pretorius
Case
number . 77215/2011
Heard
on : 23 May 2013
For
the Plaintiff : Adv Mayhiti
Instructed
by : Vusi Mailula
For
the Defendant : Adv van der Men/ve
Instructed
by : Delport van den Berg INC
Date
of Judgment : 24 May 2013