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2024
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[2024] ZAGPJHC 994
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Zouzoua v Investec Bank Limited (2021/444429) [2024] ZAGPJHC 994 (4 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
Case Number:
2021/44429
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED: NO
4 October 2024
_______________________
______________
_____________________
……………………
..
………………………...
DATE
SIGNATURE
In
the matter between:
OLIVIER
CHARLES ZOUZOUA
Applicant
And
INVESTEC BANK
LIMITED
Respondent
JUDGMENT
Mdalana-Mayisela
J
[1]
T
his is an application for leave to appeal
to the Supreme Court of Appeal, alternatively to the Full Court of
this Division, brought
by the applicant against the whole order
granted by this court on 6 September 2023 and the reasons thereof
furnished on 4 April
2024. The application is opposed by the
respondent.
[2]
The application is based on the following grounds:
[2.1]
The court erred in dismissing the application to strike out and
failed to appreciate a self-contained sanction in Rule 35(12)
that
automatically comes into effect upon non-compliance with the
provisions of this Rule;
[2.2]
The court misdirected itself on the facts of the matter in respect of
the further advance fees that were charged by the respondent
and that
were not agreed to by the applicant;
[2.3]
The court erred in law in finding that the second advance was not
reckless and was not in contravention of the National Credit
Act; and
[2.4]
The court erred in law in failing to consider the factors required by
Rule 46A of the Uniform Rules of Court when making the
order
declaring a primary residence specifically executable.
[3]
The applicant submitted that the appeal would have a reasonable
prospect of success. The test for leave to appeal is stated
in
section 17(1)(a) of the Superior Courts Act 10 of 2013 (“the
Superior Courts Act&rdquo
;), which provides that:
“
(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 compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.
[4]
In
S
v Smith
[1]
,
the Supreme Court of Appeal explained that “
what
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. 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”
.
[5]
I now turn to deal with the grounds for the application for leave to
appeal. Rule 6(15) of the Uniform Rules of Court regulates
the
striking out of matter from an affidavit. It provides that the court
may on application order to be struck out from any affidavit
any
matter which is scandalous, vexatious or irrelevant, with an
appropriate order as to costs, including costs as between attorney
and client. The application must be on notice and supported by
affidavit in terms of subrule (11). It must clearly indicate the
passages to which objection is taken and set out the grounds of
objection shortly.
[6]
The applicant’s notice in terms of Rule 6(15) is defective
because it is not supported by affidavit as required by subrule
(11).
On this basis alone it must fail. Furthermore, subrule (15) provides
that the court may not grant the application unless
it is satisfied
that the applicant will be prejudiced if the application is not
granted. The applicant has failed to show under
oath that he will be
prejudiced if the application is not granted. In the premises, the
application to strike out was correctly
dismissed.
[7]
The applicant contended that further advanced fees were not agreed to
between the parties. This contention is incorrect on the
following
basis. The further advanced fees are provided for in the loan
agreement concluded by the parties in April 2007 and amended
in
writing and signed by the parties in September and October 2008 (“the
loan agreement”). In terms of the loan agreement
the respondent
advanced the first
amount of R848,000.00
for the purchase of a vacant stand. On 25 April 2007, a first
continuing covering mortgage bond was registered
over the property as
security for the first advance. A second amount of R2,2 million was
advanced to the applicant in terms of
the loan agreement in 2008 for
the construction of a home on the vacant land. A second continuing
covering mortgage bond was registered
over the property as the
security for the second advance. The further advanced fees
were
for administrative duties and requirements, such as inspection and
valuation reports. Those fees are provided for in clause
5,5 special
conditions of the loan agreement signed by the applicant on 18
September 2008. Accordingly, this ground must also fail.
[8]
The applicant contended that the court erred in finding that the
second advance was not reckless. He argued that when the second
amount for the construction of the home was advanced, the credit
facility was in arrears. This contention is not true. The statement
of account attached to the founding affidavit and marked annexure
“FA5” confirms that the applicant settled the first
advance for the vacant land before the second advance was made. On
the 20
th
of June 2008, the account balance was R0.31. This
ground must also fail.
[9]
The applicant argued that the court failed to consider the factors
provided in Rule 46A in declaring a primary residence specially
executable. The parties filed a joint practice note in the main
application stating issues that were common cause, and issues in
dispute. Those issues were confirmed in court during the hearing of
the main application. In relation to the factors provided in
Rule
46A, the issues in dispute were the value of the property and whether
the applicant would become destitute if the order is
granted and
executed.
[10]
I have dealt with the aforesaid issues in my main judgment, and I do
not intend to repeat same herein. I have also considered
other
factors provided in Rule 46A, although not specifically mentioned in
my main judgment, when I determined whether to set a
reserve price
and the amount thereof. The respondent provided the court with the
relevant information in its papers for consideration
of those
factors. The fact that the court did not specifically mention each
and every single factor is not to say that the court
did not consider
the factors
[2]
.
[11]
In conclusion, I am of the opinion that the appeal would have no
reasonable prospect of success. There is no other compelling
reason
why the appeal should be heard. The applicant has failed to meet the
requirements of
section 17(1)(a)
of the
Superior Courts Act. In
the
premises, this application must fail.
ORDER
[12] The following order
is made.
1. The application for
leave to appeal is dismissed with costs on an attorney and client
scale.
MMP Mdalana-Mayisela
Judge of the High
Court
Gauteng Division
(Electronically
delivered by uploading on Caselines and emailing to the parties)
Date
of Judgment:
4
October 2024
Counsel
for the Applicant:
Instructed
by:
Adv
M De Olivier
ENS
Africa attorneys
Counsel
for the respondent:
Instructed
by:
MB
Mhango
Bazuka
and Company Incorporated
[1]
S
v Smith
2012 (1) SACR 567
(SCA) at (7).
[2]
Rex v Dhlumayo and Another
1948 (2) SA 677
(A) at 706.