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[2024] ZAGPJHC 871
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N.C.Z and Another v K.M.N (Leave to Appeal) (33078/2019) [2024] ZAGPJHC 871 (26 August 2024)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 33078/2019
DATE
:
2024-08-26
1.
REPORTABLE: NO.
2.
OF INTEREST TO OTHER JUDGES: NO.
3.
REVISED.
26
August 2024
In
the matter between
NCZ and Another
Applicants
and
KMN
Respondent
JUDGMENT
EX TEMPORE
LEAVE TO APPEAL
WILSON,
J
: The applicants, Mr and Mrs
Z, who were the defendants
a quo
,
seek leave to appeal against my decision dated 10 May 2024, in which
I directed them to pay the sum of R430 000 plus interest
and costs to
the plaintiff, KMN.
My trial judgment
was entirely factual in nature. To persuade me that there are
prospects of success on appeal, Mr and Mrs Z have
to show that there
is a reasonable prospect that a court of appeal would find the
factual conclusions I reached were clearly wrong.
That really boils
down to the proposition that I drew my conclusions in the absence of
evidence that supported them or that I ignored
admissible evidence
inconsistent with them.
Mr and Ms Z do not
mount a case of that nature. What Mr and Mrs Z say is that a court of
appeal might weigh up the facts proved
at trial differently. On its
own terms that is not a basis on which I can grant leave to appeal.
At
trial KMN and Mr and Mrs Z told two mutually destructive stories
about why KMN transferred R430 000 to Mrs Z. KMN said it was
for Mrs
Z to buy her a house. Mr and Mrs Z said that it was a gift from KMN
to Mrs Z.
I found in my trial
judgment that if all I had were the competing versions of the parties
before me, I could not choose between
them and I would have to
absolve Mr. and Mrs Z from the instance.
However, the
parties’ competing versions were not the only admissible
evidence at trial. I also had bank statements which
everybody
accepted showed that over a period of several years, after a house
was in fact purchased with the money KMN gave to Mr
and Mrs Z, Mrs Z
transferred to KMN a series of amounts that were represented on the
bank statements as payments for rent made
by tenants living at the
house.
I found in my trial
judgment that this corroborated KMN’s version that the money
was given to Mr and Ms Z to buy KMN
a house.
I
found that KMN’s version was also corroborated by the fact that
she appears on the bank statements to have made payments
towards work
done to improve the house purchased with the money she gave to Mrs Z,
but which on Mr and Ms Z's version was never
meant for her. These
payments also demonstrated that the true intention underlying the
transfer of money to Mrs Z was that Mrs.
Z would buy a house for KMN,
not for herself.
Those two material
pieces of evidence – the payments to KMN marked as rent and the
payments for building materials to improve
the house – tipped
the probabilities in favour of KMN’s version. That is the
conclusion I drew in my judgment on trial.
Mr and Mrs Z,
despite diligent and able argument from Mr Ali who appeared on their
behalf, have been unable to convince me that
there is a basis on
which an appeal court might conclude that these factual findings were
clearly wrong.
For all those
reasons, I make the following order:
[1] The application for leave to
appeal is dismissed.
[2] The applicants will pay the costs
of the application.
WILSON, J
JUDGE OF THE HIGH COURT
26 August 2024