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[2024] ZAKZPHC 67
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Marsing and Company (Pty) Ltd v Redinger (1144/2019P) [2024] ZAKZPHC 67 (2 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 1144/2019P
In
the matter between:
MARSING
AND COMPANY (PTY)
LTD
APPLICANT
and
ANDRE
RUDY REDINGER
RESPONDENT
ORDER
The
following order is granted:
1.
The respondent’s application for leave to appeal is dismissed
with costs, such costs to be on the attorney and client scale.
JUDGMENT
E
Bezuidenhout J
[1]
The respondent applies for leave to appeal against a judgment by my
now retired brother,
Van Zyl J, which was handed down on 5 February
2024. The application was filed on 8 February 2024 and allocated to
me on 12 March
2024. Due to me being away on circuit during April to
May 2024, the application was only heard on 13 June 2024. The grounds
of
appeal were set out in the application and read as follows:
‘
1.
The Court
a quo
erred in
holding that there was no material dispute of facts on the papers and
that as the Applicant had elected to have the matter
determined on
the papers, the matter was not possible of proper determination on
the papers.
2.
The Court erred in not deciding the matter on the version of
the
Respondent as set out in the answering affidavit.
3.
The Court erred in ignoring the material disputes of fact and
deciding the matter effectively on the version of the Applicant and
/or the probabilities.
4.
The Court erred in not giving effect to the disputes raised
by
Respondent which constitute defences in the Respondent’s hands
(as they had been in the hands of Dalton Sugar Company,
(Pty) Limited
(In liquidation).
5.
The Court erred in not holding that those clauses of the agreement
which negated the raising of these substantial defences were contrary
to public and that the court should not enforce them.
6.
The Court erred in not developing the common law to entitle
the
Respondent to raise the material and substantial defenses that he
raised in the answering affidavit.
7.
Alternatively, the Court erred in not limiting the application
of
such clauses to a reasonable degree.
8.
The Court
a qou
erred in not concluding that the clauses of
the agreement referred to in the judgment at paragraph [38] were
offensive to public
policy and should not be enforced.
9.
The Court erred in granting Applicant judgment.’
[2]
I do not intend setting out the facts of the matter in any detail, as
they appear
clearly from the judgment. It suffices to say that the
applicant sought judgment against the respondent in the amount of R9
630
217.28 in his capacity as surety and co-principal debtor for
Dalton Sugar Company (Pty) Ltd (Dalton), which judgment was granted.
Dalton has subsequently been liquidated.
[3]
Counsel for the applicant as well as counsel for the respondent
submitted well-considered
written submissions in respect of the
application for leave to appeal, for which I am grateful, bearing in
mind that I have not
previously dealt with the matter. I was further
urged to consider the comprehensive heads of argument that were
submitted previously
when the matter was argued before Van Zyl J.
Both counsels also made well-reasoned and passionate submissions
before me, all of
which I have carefully considered.
[4]
Before I deal with the merits of the application, it is perhaps
appropriate to say
something about the test to be applied in
applications of this nature. In terms of section 17(1)
(a)
(i)
of the
Superior Courts Act 10 of 2013
, leave to appeal may only be
given where the judge is of the opinion that ‘the appeal would
have a reasonable prospect of
success’, or in terms of
section
17(1)
(a)
(ii), if there is ‘some other compelling reason
why the appeal should be heard’.
[5]
In
The
Mont Chevaux Trust v Goosen and others,
[1]
Bertelsmann J (in an obiter dictum) held that:
‘
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.’
[6]
The test was also considered in
S
v Smith
[2]
where the court held:
‘
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 categorised
as hopeless. There must, in other words,
be a sound, rational basis
for the conclusion that there are prospects of success on appeal.’
(Footnotes omitted.)
[7]
In
Four
Wheel Drive v Rattan NO
,
[3]
Schippers JA, with reference to
S
v Smith supra,
referred to the principle that leave to appeal should only be granted
where ‘a sound, rational basis [exists] for the conclusion
that
there are prospects of success on appeal’. The court is
required to test the grounds on which leave to appeal is sought
against the facts of the case and the applicable legal principles.
The court a quo was also criticised for granting leave to appeal
when
there were no reasonable prospects of success, which resulted in the
parties being put through the inconvenience and expense
of an appeal
without any merit.
[8]
It was held in
Democratic
Alliance v President of the Republic of South Africa
[4]
that
‘
A balance
between the rights of the party which was successful before the
court a quo and the rights of the losing
party seeking
leave to appeal need to be established so that the absence of
a realistic chance of succeeding on appeal
dictates that
the balance must be struck in favour of the party which was initially
successful.’
[9]
Counsel for the applicant, Mr Sawma SC, referred in his heads of
argument to
Ramakatsa
and others v African National Congress and another
[5]
and submitted that it was now settled by the Supreme Court of Appeal
that the test remains that of reasonable prospects which ‘…
postulates 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’.
[10]
Returning to the present application, counsel for the respondent, Mr
Dickson SC, raised a number
of issues, starting with the submission
that the court erred in not referring the matter for oral evidence.
It was submitted that
the court erred by deciding the case on the
applicant’s version and that it created an unfair hearing where
one of the parties
wanted his day in court through the hearing of
oral evidence. It was also submitted that it was an appealable
irregularity where
a request for oral evidence was made and then
ignored by the court. Mr Dickson SC referred extensively to
South
Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd
(‘
Secprop
’)
[6]
where the full court, on appeal, set aside a judgment and referred
the matter for trial. Govern J, writing for the full court,
referred
to
[7]
the classic authority on
this issue, namely
Plascon–Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[8]
It does not appear from the heads of argument submitted previously
that reliance was placed on
Secprop
before Van Zyl J.
[11]
I was referred to the following para in
Secprop
where it was held that:
[9]
‘
I
conceive that the test to be applied as to whether a genuine factual
dispute has been raised on the papers is similar in nature
to that in
a trial at the point where the plaintiff's case has been closed and
absolution is sought before the defence is embarked
upon. Here, the
test is whether there is evidence upon which a reasonable presiding
officer might or could find for the plaintiff.
If there is,
absolution should be refused. The court does not enter into an
evaluation of the credibility of witnesses unless they
have “palpably
broken down, and where it is clear that they have stated what is not
true”. Similarly, in motion proceedings,
a robust approach
can only be taken, and the matter decided on the probabilities, if
that clear falsity emerges from the papers.
This was clearly stated
by Leon J in
Sewmungal and Another NNO v Regent Cinema
where
he said:
“
There
are, however, more serious improbabilities to which the learned Judge
has referred. But they are not of such a nature as to
justify the
conclusion that they are so inherently improbable that the
respondent's version is incredible.”
In
the light of what I have set out above, I do not believe that it can
be said that the version of the respondent raises “bald
or
uncreditworthy denials . . . fictitious disputes of fact, is
palpably implausible, far-fetched or so clearly untenable
that the
court is justified in rejecting them merely on the papers” or
is “fanciful and wholly untenable,” or
so
“inherently improbable that the respondent's version is
incredible”. I am satisfied that the respondent “has
in
[its] affidavit seriously and unambiguously addressed the fact said
to be disputed”. In the absence of “direct and
obvious
contradictions” judgment on the credibility of the deponent to
the respondent's answering affidavit must be left
open.
’
(Footnotes omitted.)
[12]
Secprop
has
been referred to in a number of cases, mostly because of its
convenient summary of the test formulated by the courts when
determining
whether real, genuine bona fide disputes of fact
exist.
[10]
In
Rainmaker
Logistics (Pty) Ltd v Gravitas Capital (Pty) Ltd
[11]
Keightley J referred to
Secprop
and
held as follows:
‘
24. On
my reading of the full bench decision in one of the cases referred
to, viz.
South Coast Furnishers
CC
(see below), the court did
not purport to supplant the well-established principles for
determining when it is permissible
to reject a respondent's version
where disputes of facts arise in motion proceedings. In fact, the
court not only cited the above
dictum from
NDPP
v Zuma
, but also applied those
principles in upholding the appeal. Where the court in
South
Coast Furnishers CC
makes
reference to the need for “
clear
falsity
” to emerge from the
papers, it is in the context of the evaluation of the
creditworthiness of a witness. It does not seem
to me to have been
intended to introduce a stricter test than the one already laid down
by the courts to determine when it is appropriate
to reject a
respondent's version on the papers.
25. What
does appear to be clearly demonstrated in
South Coast
Furnishers CC
is that a court must consider the nature of
any alleged improbabilities in the respondent's version before being
robust in
rejecting them. These probabilities must be considered
within the context of all the evidence before the court, including
the applicant's
own papers. The court stated in this regard that:
“
These
submissions (of the applicant regarding the alleged improbabilities
in the respondent's version) have some force. However,
they cannot be
viewed in isolation. There are features of the applicant's case which
must be weighed against the apparent improbabilities
on which the
applicant relies.”’ (Footnotes omitted.)
[13]
I agree with the sentiments expressed by Keightley J that
Secprop
was
not intended to introduce a stricter test and, furthermore, that a
court must consider the probabilities of the respondent’s
version before rejecting them. In
Secprop,
the court dealt with the particular facts of the matter and found
that it should have been referred for the hearing of oral evidence.
Likewise, in the present matter, the court had to deal with the
particular facts of the matter and ultimately found that there
were
no factual conflicts which are ‘sufficiently material, so as to
prevent the matter from being decided upon the papers,
as opposed to
a referral to trial’.
[12]
The court did not expressly deal with the improbabilities in the
respondent’s version or whether it was in any way false
and
untenable, perhaps being kind to the respondent, but it examined the
possible claims and, to a lesser extent, the defences
raised by the
respondent and concluded that there were none.
[14]
It was submitted on behalf of the applicant that the respondent’s
submissions failed to
consider paras 33 and 43 of the judgment where
the court found that the alleged disputes purportedly raised by the
respondent were
irrelevant in that they were precluded by the terms
of the facilities agreement concluded between the parties.
[15]
It was further submitted on behalf of the respondent that the court
failed to adequately deal
with the various defences raised by him in
his answering affidavit, which inter alia included that the reliance
by the applicant
on certain draconian clauses was contrary to public
policy and should not be enforced. The respondent contended that the
common
law should be developed to align such clauses with
constitutional values. Reference was made to
Barkhuizen
v Napier
(‘
Barkhuizen
’).
[13]
[16]
It was submitted on behalf of the applicant that the court in its
judgment referred to
Barkhuizen
but
correctly observed that it had been qualified and explained in the
subsequent judgment of
Beadica
231 CC and others v Trustees, Oregon Trust and others
(‘
Beadica
’).
[14]
It was further submitted that the court correctly held that the
respondent, who bore the onus, had failed to demonstrate that any
of
the clauses complained of were offensive within the meaning of the
Barkhuizen/Beadica
test.
The court had also correctly found, it was submitted, that the
respondent had not advanced any factual circumstances which
would
render it against public policy to enforce the clauses in the
particular circumstances of the matter. By way of example,
reference
was made to clause 28 of the credit agreement in terms of which
Dalton had to inform the applicant of any breach or defect
within
three days of such breach. This was not done, and the respondent gave
no explanation why the clause was not complied with.
[17]
A number of further issues were raised by the parties, all of which I
have considered, but I
will concentrate on the issue of the alleged
disputes of facts, necessitating a referral to oral evidence. It was
submitted on
behalf of the applicant that the respondent’s
version was lacking in bona fides and contained many hollow and bald
allegations
and that he furthermore failed to give a cognisable
explanation for the state of affairs. Reference was, inter alia, made
to 16
email communications that passed between the parties between
July and November 2018 regarding Dalton’s liability to the
applicant,
wherein Dalton’s liability was admitted without any
hint of complaint or dispute and which the respondent failed to
address
in any detail in his answering affidavit. I pause to mention
that it emerged from the application papers that a winding-up
application
was brought against Dalton, wherein all parties filed
lengthy affidavits, to which extensive reference was made in the
present
application. The applicant filed a replying affidavit in the
winding-up application wherein it dealt in detail with the defences
and claims relied upon by Dalton, which were in essence the same as
those raised by the respondent in the present application.
The
respondent was invited to address the allegations of the applicant in
that replying affidavit in his answering affidavit to
be filed in the
present application, which would have been a perfect opportunity to
demonstrate the existence of bona fide disputes
of fact. The
respondent failed to do so. It was submitted on behalf of the
applicant that even after reading the applicant’s
reply and the
number of annexures attached to it, the respondent would have been
able to seek leave to file a further affidavit,
as permitted by
Uniform
rule 6(5)
(e)
, yet he failed to do so.
[18]
I have given careful consideration to the voluminous application
papers, the judgment by Van
Zyl J, and the detailed submissions made
before me. I am of the view that the respondent has failed to
convince me that he would
have reasonable prospects of success on
appeal or that a court of appeal would arrive at a different
conclusion than the court.
No judgment is ever perfect and often a
judge would consider certain aspects which would not necessarily be
mentioned in a judgment.
I am of the view that the respondent has
failed to establish the existence of bona fide factual disputes,
justifying a referral
to trial. There is no merit in the submission
by the respondent that the request to refer the matter to oral
evidence was ignored
by the court, as it was clearly considered in
para 43 of the judgment. In my view, the court would have been fully
justified in
arriving at a conclusion that the version of the
respondent is false and untenable, and the robust approach of the
court was accordingly
justified. The matter was furthermore clearly
capable of being decided on the probabilities. The respondent has
also failed to
convince me that the court erred in rejecting his
defences. Although the court did not address it in great detail, I am
of the
view, having considered the papers, that the various defences
can safely be rejected. The court, in my view, also correctly found
that the respondent has failed to establish that the alleged
offensive clauses were against public policy.
[19]
As far as the issue of costs is concerned, it was submitted on behalf
of the applicant that the
credit agreement makes provision for costs
to be paid on the attorney and client scale. I see no reason to
deviate from the general
rule, namely that costs follow the result.
[20]
I accordingly grant the following order:
1.
The respondent’s application for leave to appeal is dismissed
with costs,
such costs to be on the attorney and client scale.
__________________________
E
BEZUIDENHOUT J
Date
of hearing:
13 June 2024
Date
of judgment:
2 August 2024
Appearances:
For
the applicant:
AG Sawma SC
Instructed
by:
Tugendhaft Wapnick Banchetti & Partners
c/o Grant & Swanepoel
Attorneys
Suite 1, The Mews
Redlands Estate
George Macfarlane Lane
Pietermaritzburg
Email:
anthony@gsalaw.ca.za
Tel: (033) 342 0375
Ref: A Grant / Priyanka/
01T001019
For
the first respondent
(applicant
in the application for leave to appeal):
AC Dickson SC
Instructed
by:
Hay and Scott Attorneys
Top floor, Highgate
drive, Redlands Estate
1 George Macfarlane Lane
Pietermaritzburg
Tel: 033 342 4800
Ref: JF
Campon/tc/08R068001
[1]
The
Mont Chevaux Trust v Goosen and others
[2014] ZALCC 20
; 2014 JDR 2325 (LCC) para 6.
[2]
S
v Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7.
[3]
Four
Wheel Drive Accessory Distributors CC v Rattan NO
[2018] ZASCA 124
,
2019 (3) SA 451
(SCA) para 34.
[4]
Democratic
Alliance v President of the Republic of South Africa and others
[2020]
ZAGPPHC 326 para 5.
[5]
Ramakatsa
and others v African National Congress and another
[2021]
ZASCA 31
para 10.
[6]
South
Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd
2012
(3) SA 431 (KZP).
[7]
Ibid
para 5.
[8]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A).
Gorven
J also made reference to
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and another
[2010]
ZASCA 66
;
2011 (1) SA 8
(SCA) para 21 and
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
[9]
Secprop
para
15.
[10]
See
for instance:
S
v Sewnarain
2013
(1) SACR 543
(KZP) para 31;
Johnstone
v Shebab
2022 (1) SACR 250
(GJ) para 27; and
Moonsamy
v Govender
2018 JDR 2051 (KZD) where Govern J, with reference to his previous
judgment, found that certain denials were ‘false and
untenable’.
[11]
Rainmaker
Logistics (Pty) Ltd v Gravitas Capital (Pty) Ltd
[2018]
ZAGPJHC 685; 2019 JDR 0268 (GJ) paras 24-25.
[12]
Van
Zyl J’s judgment para 43.
[13]
Barkhuizen
v Napier
[2007]
ZACC 5; 2007
(5)
SA 323 (CC).
[14]
Beadica
231 CC and others v Trustees, Oregon Trust and others
[2020]
ZACC 13
;
2020 (5) SA 247
(CC).