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[2009] ZAGPPHC 340
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Xon Infrastructure (Pty) Ltd v Accesslan KZLN (Pty) t/a Acceslan Richards Bay (47512/2008) [2009] ZAGPPHC 340 (8 May 2009)
IN
THE HIGH COURT OF SOUTH' AFRICA
(North
Gauteng High Court, Pretoria)
Not
reportable
Case
number: 47512/2008
Date
heard: 6 April 2009
Date
delivered: 08 May 2009
In
the matter between:
XON
INFRASTRUCTURE (PTY)
LTD Respondent
And
ACCESSLAN
KZLN (PTY) LTD t/a
ACCESLAN
RICHARDS
BAY Applicant
Coram.:
Mabuse, AJ
JUDGMENT
ON APPLICATION FOR. LEAVE TO APPEAL
MABUSE,
AJ
[1]
This is an application by the applicant, Xon infrastructure (Pty)
Ltd, for leave to appeal against the summary judgment granted
against
It by this Court on November 2008. On the said date, the Court, in
granting summary judgment in favour of the respondent,
ordered the
applicant to pay the respondent, then the plaintiff, a sum of
R746,669.86 interest on the said
amount at
the rate of 15,5% per annum,
a tempore morae
reckoned from 31
January 2008 to date of final payment; and costs on
attorney-and-client scale, In accordance with clause 18.1
of annexure
'A' to the respondent's summons.
[2]
The applicant now seeks, on several grounds fully expounded in the
notice of appeal, leave of this court to launch an appeal
against the
decision of this court to grant the aforementioned summary judgment.
The respondent opposes the applicant's application
for leave to
appeal, in view of the fact that the applicant has fully set out the
grounds on which it seeks leave to appeal and
the respondent has also
done likewise In respect of Its opposition, there Is In my view, no
need to repeat them In my judgment.
Suffice to mention that the
applicant's grounds enjoyed the support, not only by its counsel's
heads of argument, but also its
argument. I am satisfied that the
applicant's heads of argument related materially to the subject
matter of appeal as raised In
the applicant's notice of application
for leave to appeal.
[3]
It Is true that the test at this stage Is, whether or not another
court, seized with the same set of facts, would have decided
differently, or, whether or not the applicant has reasonable
prospects of success on appeal. This principle applies In equal
measures
to both civil and criminal matters, in R v Baloi
1949 (1) SA
523
AD at pp. 523-4 the court stated as follows:-
"
The legislature
has not granted an appeal as if right but has empowered the trial
judge to give leave to appeal. That power must
obviously be exercised
judicially, in applications for special leave to appeal under section
ids of the South Africa Act and section
1 of Act l of 1911, this
court said down the rate that Leave to appeal should not be granted
unless the application will have reasonable
prospects of success in
appeal."
[4]
In R v Baloi (supra) the court emphasised that the test to be applied
had been set out in R v. Ngubane & others
1945 AD 185
at p. 167,
the case in which Davis AJ (as he then was), speaking for the entire
court, stated as follows:-
"In all the
cases, no matter what form of words was used, the same thing was, in
my opinion, intended to be conveyed, namely
that it is for the
applicant for special leave to satisfy the court that if that leave
be granted, he has a reasonable prospect
of success on appeal.
That was the test
applied, for instance, in 'Bezuidenhout v Opperman (1943 AD at p. 193
and it is, in my view, the correct one".
[5]
At the commencement of his argument counsel for the applicant
referred this court to the mature of summary judgment proceedings
and
reminded it of the provisions of Rule 32 of the Uniform Rules of this
Court. He explicated that rule 32(2) (b) provided that
the defendant
must satisfy the court by affidavit and “
not prove"
that It has a bona fide defence against the respondent's claim. He
argued further that the applicant did not have to formulate
its
grounds of opposition to the respondent's application for summary
judgment with such precision, as would be required of a plea.
[6]
After a concise reference to the two versions, that is, the
respondent's and applicant's versions and arguing vehemently that
the
applicant's version and arguing should prevail, he referred to
specific findings which In his view would have been sufficient
to
persuade another court to come to a different. Referring to the
credit application which was annexed to the respondent's summons,
he
argued that signing a credit application did not result in the
granting of the application nor should It be construed as the
necessary consensus to c-otAyoLu.de an agreement, (n developing his
argument, he stated furthermore that the applicant never received
from the respondent any notification of the fact that Its application
for credit facility had been a-p-proved. He is of the view
that under
those circumstances no agreement has come into place.
[7]
On the other hand, the counsel for the respondent argued that what
was of paramount Importance was that there was a written
agreement
which the parties had signed. Relying on the said written agreement,
she referred the Court to clause 2.1 thereof which
stated that:-
“
This agreement
only becomes -final and binding on receipt and acceptance of the
offer by Accesslan at its business address in Irene."
[8]
It would appear that, no matter what the parties preferred to call
it, the document attached to the respondent's summons appeared
to be
containing all the terms that the applicant had agreed to be bound
by. These terms had been framed by the respondent, it
Is In fact for
that particular reason that the respondent referred to the document
as an agreement while the applicant referred
to It as an application
for credit facilities. The applicant contends, that the document did
not constitute any agreement but was
merely an application for credit
facilitates.
[9]
On the other hand the respondent, and It was so submitted by counsel
for the respondent, contends that the said document constitutes
an
agreement by which the parties have agreed to be bound. The
battlefield between the parties therefore is whether or not the
said
application constituted an agreement.
[10]
The applicant's further ground on which it seeks to challenge the
judgment is whether or not the orders copies of which were
attached
to the respondent's summons as annexures 'B1' to "B.14' were
authorised by the applicant. The applicant's counsel
argued that the
said orders, were not authorised by the applicant whereas the
respondent's course I was unwavering in her argument
that there was
no merit in the applicant's counsel's argument in view of the fact
that the said orders were made on the applicant's
letterheads.
Accordingly there exists a dispute between the parties on this point
and several other grounds which have been fully
set out and to which
I have not specifically referred, on which the applicant intends
relying on.
[11]
I am satisfied that there is merit In the applicant's application and
am moved to grant the application for leave to appeal.
I accept the
applicant's contention that another court, seized with the same set
of facts, may decide differently.
"Now, It is not
suggested that the respondent is not bona fide in advancing the case
as he does, and the only question is whether
he has put forward a
triable and arguable issue; In other words, whether the defence can
possibly succeed, if there Is a possibility
of Its succeeding I am
not required to consider whether success Is likely or unlikely",
see Davis v. Terry
1957 SA 98
(SR) at p. 102
Accordingly
I make the following order:-
1. The Applicants
application for leave to appeal to the full bench of the Northern
Gauteng High Court against the summary judgment
of 26 November 2002
is hereby granted.
2. Costs of the
application, for leave to appeal shall be costs In the cause.
MABUSE,
AJ
Applicant's
Attorneys:
VAN DER MERWE DU TOIT INC;
Applicant
counsel: adv.
Erasmus FJ
Respondent's
Attorney:
Jan Ehlers Attorneys
Respondent's
counsel:
Adv. M.S. Janse van Rensburg