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2024
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[2024] ZAFSHC 222
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Timac Agro South Africa (Pty) Ltd v Nel (3379/2020) [2024] ZAFSHC 222 (19 July 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case
No: 3379/2020
In
the matter between:
TIMAC
AGRO SOUTH AFRICA (PTY) LTD
Plaintiff
and
THEUNIS
LODEWYK ADRIAAN NEL
Defendant
HEARD
ON:
19 JULY 2024
JUDGMENT
BY
:
MHLAMBI, J
APPLICATION FOR LEAVE TO
APPEAL
[1]
This an application for leave to appeal against a judgment and order
granted on 07 December 2023. The order
reads as follows:
“
1.
The plaintiff’s action is declared to have been issued
prematurely.
2.
The plaintiff may not commence any legal proceedings to enforce the
agreement between the parties before:
2.1 First
providing the defendant with a notice as contemplated in
section
129(1)(a)
of the
National Credit Act 34 of 2005
; and
2.2 Meeting any
further requirements set out in
section 138(1)
of the
National Credit
Act 34 of 2005
.
3.
The plaintiff to pay the costs of suit.”
[2] The
application is predicated on the provisions of
section 17(1)
read
with section 17(6)(a) of the Superior Court Act 10 of 2013, (“the
Act”), for leave to appeal to the full court
of this Division
or the Supreme Court of Appeal.
[3] The
application is opposed. On 27 February 2024 I gave a directive that
the parties should file heads of argument
as I intended to dispose of
the matter in terms of section 19(1)(a) of the Act. The applicant
filed both heads and replying heads
of argument to the respondent’s
heads of argument. Both sets of the heads of argument are extensive.
The applicant made persuasive
arguments that, in the light of the
order made, the court should have postponed or adjourned the trial to
enable the plaintiff
to comply with the provisions of the
National
Credit Act
, (“the NCA”), whereafter the plaintiff would
have been entitled to resume the action. This argument was based on
the
provisions of
section 130(4)(b)
of the NCA that if the credit
provider has not complied with the relevant provisions of that Act,
the court must adjourn the matter
before it; and make an appropriate
order setting out the steps the credit provider must complete before
the matter may be resumed.
[4] In
the light of the above, I am therefore of the view that the applicant
has reasonable prospects of success
in the appeal and the application
for leave to appeal should be granted.
[5] I
therefore make the following order:
Order:
1.
The application for leave to appeal to the
full bench of the Free State Division of the High Court is granted.
2.
Costs of this application shall be costs in
the appeal.
MHLAMBI, J
On
behalf of the plaintiff:
Adv.
DD Swart
Instructed
by:
Salley’s
Attorneys
Salley’s
Yamaha Building
58
Dan Pienaar Drive
Bloemfontein
On
behalf of the Defendant:
Mr
HSL Duplessis
Instructed
by:
Blair
Attorneys
32
First Avenue.
Westdene
Bloemfontein