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[2009] ZAGPJHC 84
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Potgieter v Greenhouse Funding (08/31825) [2009] ZAGPJHC 84 (26 June 2009)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG
HIGH
COURT (JOHANNESBURG)
CASE
NO; 08/31825
DATE:
25/06/2009
In
the matter between:
POTGIETER
......................................................................................................
Applicant
and
GREENHOUSE
FUNDING
.............................................................................
Respondent
JUDGMENT
LAMONT.
3:
[1]
This is an application for leave to appeal against the judgment and
order I made previously
in
this matter.
[2]
The
application for leave to appeal was launched late. There has been a
proper explanation for the delay and I ruled that
the
matter
be heard.
[3]
The original application was an application for the following relief:
"1.
... allowing the matter to be heard as one of urgency...
2.
Interdicting the second respondent from selling the property known
as...
3.
That the sale In execution of the property known as ... be stayed
immediately.
4.
That the orders referred to in paragraphs 2 and 3 above shall remain
In force pending the conclusion of an application which
the applicant
intends instituting for an order:-
4.1
setting aside the default judgment,..
4.2
declaring the writ of execution ... to be null and void and of no
force and effect...
5.
The applicant shall Institute the application referred to in
paragraph 4 above within 20 (twenty) days of the grant of this
order..."
[3]
The urgency in the matter was that the property was due to be sold
the day after the matter was heard. It is apparent that the
essential
relief the applicant sought was the stay of the sale pending the
institution of the appropriate rescission application
(and other
relief not relevant to the present matter),
[4]
At the hearing the applicant submitted that the respondent had
applied for a debt review in terms of section 86 of the National
Credit Act No. 34 of 2005 (the Act) and that in consequence the
respondent was not entitled to have instituted action and sought
and
obtained the judgment founding the writ.
[5]
The respondent had taken what I ruled to be an appropriate step under
section 129 of the Act prior to the application for a
debt review. In
the course of the judgment I handed down dismissing the application I
found that the applicant had no reasonable
prospects of the
application for rescission succeeding in that basis. For that reason
I dismissed the application with costs
[6]
I am advised from the Bar that pursuant to the safe in execution the
property was duly sold. No rescission application has been
brought.
[7]
I am advised by the applicant that the applicant has no other basis
to obtain a rescission than that which served before me
and which T
found was inadequate to found an application for rescission. It is
apparent from the judgment I earlier gave that my
finding is not one
which creates
res judicata
on the issue of the rescission. It
is merely a rinding made by me
en passant
and as part of the
reasoning of the application which served before me to stay the sale
in execution. The respondents' counsel accepted
that the statement
that I made in regard to the rescission was not one which entitled it
to raise the question of res
judicata
.
[8]
The respondent when the application served before me today raised the
issue that the order which I had made did not dispose
of an issue in
the matter and accordingly submitted that the order was not
appealable.
[9]
If the appeal is allowed then the only order which can be made in
substitution for the order which J made would be an order
giving
effect to the prayers staying the sale pending the finalization of
the rescission application to be instituted.
[10]
Such an order in my view would have no practical effect or result.
Accordingly, by reason of the provisions of section 21A
of the
Supreme Court Act 59 of 1959 the application for leave to appeal
falls to be dismissed,
[11]
The question of whether or not the rescission application if it is
brought is to be considered afresh by the judge hearing
that
application needs To be considered. My statement in the previous
judgment will have no effect on his reasoning. Accordingly,
the order
which I made is in any event not an appealable one. There may be
other reasons why the rescission application should
fail or succeed.
The decision assuming ft to be final and definitive on the point of
law accordingly is not final in the matter.
See Maize Board v Tiger
Oats Ltd and Others
2002 (6) SA 635
(SCA) at 373 para [12],
Accordingly, T hold that the order which I made is not appealable. It
follows that the application for
leave to appeal falls to be
dismissed with costs. The order which I make is:
Application
for leave to appeal dismissed with costs.
CG
LAMONT
JUDGE
OF THE HIGH COURT