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2024
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[2024] ZAFSHC 152
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Global Connect Trading (Pty) Ltd and Others v South African Securitisation Programme (RF) Ltd and Others (3198/2022) [2024] ZAFSHC 152 (28 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
REPORTABLE:
NO
OF
INTEREST TO OTHER
JUDGES: NO
REVISED.
NO
Case
Number: 3198/2022
In
the matter between:
GLOBAL
CONNECT TRADING (PTY) LTD
First
Applicant
WILLEM
CRISTOFFEL DE JAGER
Second
Applicant
STEFHANUS
HENDRIK DE JAGER
Third
Applicant
JACOBUS
HENDRIKUS DE JAGER
Fourth
Applicant
And
SOUTH
AFRICAN
SECURITISATION
First
Respondent
PROGRAMME
(RF) LTD
SASFIN
LTD
Second
Respondent
SUNLYN
(PTY) LTD
Third
Respondent
HEARD
ON:
15 March 2024
CORAM:
JORDAAN,
AJ
DELIVERED
ON:
28 May 2024
[1]
This is an application for leave to appeal
against the whole of the judgment of this Court and the order issued
in terms thereof,
delivered on the 31
st
day of January 2024, in terms of which
summary judgment was granted in favour of the Respondents for payment
by the First to the
Fourth Applicants, jointly and severally, the one
paying the other to be absolved,
of
the sum of R142 758,34.
[2]
The
Applicants contend that the appeal has reasonable prospects of
success.
[1]
The application is
based on the grounds as listed in the Notice of Application for Leave
to Appeal dated 21 February 2024.
[3]
The Court directed that the application for
leave to appeal would be dealt with by written representations as
provided for in Rule
16.5 of the Free State Practice Rule
s and directed the dates for filing of
representations.
[4]
Section
17 of the Superior Court's
Act
[2]
provides as follows:
'(1) Leave to appeal may
only be given where the judge or judges concerned are of the opinion
that-
(a)
(i) the appeal would have a reasonable
prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b)
the decision sought to appeal does not fall
within the ambit of section 16(2)(a);
and
(c)
where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the
real
issues between the
parties.'
[5]
In
casu
the
Applicants in their application for leave to appeal failed to
expressly quote the provision in the Superior Court Act 10 of
2013
relied upon, however, properly construed, the Applicants brought
their application for leave to appeal based on section
17(1)(a)(i).
[3]
[6]
The
test
to
be
applied
by
a
court
in
considering
an
application
for
leave
to appeal, Bertelsmann Jin
The
Mont Chevaux Trust v Tina Goosen & 18 Others
2014
JDR 2325 (LCC) at para 6 stated the following:
'It is
clear that the threshold for granting leave to
appeal against a judgment of a High Court
has been raised in the new
Act.
The former test whether leave to appeal should be granted
was
a reasonable prospect that another court might come to a different
conclusion, see Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H. The use of the word "would" in the new statute
indicates a measure of certainty that another court will
differ from
the court whose judgment is sought to be appealed against.'
[7]
In
S
v Smith
[4]
it
was stated:
'In order to succeed,
therefore, the appellant must convince this Court on proper grounds
that he has prospects of success on appeal
and that those prospects
are not remote, but have a realistic chance of succeeding. More is
required to be established than that
there is a mere possibility of
success, that the case is arguable on appeal or that the case cannot
be categorized as hopeless.
There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of success
on appeal.'
[8]
The Applicants, raised four defences in
their plea, which were dealt with in the judgment for which leave to
appeal is sought, so
too the point
in
limine
raised in the summary judgment
application.
[9]
The Applicants submit that the court erred
in finding the terms and conditions to the Summons and Particulars of
claim are legible.
The Respondent replied that the purported defence
is incapable of establishing a
bona fide
defence in law and it highlights their
lack of
bona fides.
The
legibility of the agreement was confirmed by the Applicants when in
paragraph 6.4 of their plea, they asserted that the rental
agreement
does not contain a
force majeure
clause.
[10]
The Applicants, submitted that the court erred in placing undue
reliance on secondhand hearsay evidence, relying on the
Shackleton
Credit Management
[5]
case.
The Respondents submitted that the same case held that firsthand
knowledge of every fact which goes to make up the applicants
cause of
action is not required, and...
where
the applicant is a corporate entity the deponent may well
legitimately really on records in the company's possession for their
personal knowledge of at least certain of their 11 facts and the
ability to sway positively to such facts.
[11]
The Applicants contended that the court erred in
finding that the Applicants failed to disclose, as opposed to the
implied imputation
that they failed to prove, a bona fide defence of
cancellation of the contract and consequently
the reduction of a penalty. The Respondent
contend that it is not the Applicants pleaded case that the rental
agreement was cancelled
because of breach. Cancellation can only take
place in terms of the cancellation clause in the rental agreement
itself which the
applicants did not comply with.
[10]
The applicants raised the defence of
force majeure
while on
their own version they were already in areas on 10 March 2020, which
is prior to the events leading to alleged supervening
impossibility
to perform. The Respondent submitted that the Applicants cannot be
released from their contractual obligations in
the circumstances,
having regard to case law.
[11]
After due consideration of the grounds of appeal
and the respective heads of argument, I conclude that there is a
reasonable prospect
that another court would come to a different
conclusion on the order of court.
ORDER
[11]
Consequently the following order is made:
11.1
Leave
to
appeal
is
granted
to
the
Appellants
to
the
full
court
of
this
division of the High Court.
11.2
The costs of the application for
leave to appeal to be costs in the appeal
M.T.
JORDAAN
ACTING
JUDGE OF THE HIGH COURT, BLOEMFONTEIN
Counsel
for
Applicant:
Mr
K Pretorius
Instructed
by
Kallie
Pretorius Attorneys
c/o
Blignaut Attorneys Inc
Bloemfontein
Email:
director@blignautprok.co.za
Counsel
for
Respondent:
Adv.
HJ van der Merwe
Instructed
by
Smith
Jones & Pratt Attorneys
c/o
Symington & De Kok
Bloemfontein
Email:
rbrink@symok.co.za
[1]
Notice
of Application for Leave to Appeal dated 21 February 2024 page i
[2]
Act
10 of 2013
[3]
Notice
of Application for Leave to Appeal dated 21 February 2024 page i
[4]
2012
(1) SACR 567 (SCA)
[5]
2010
(5) SA 1212
(KZN)