REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 079773/2023
In the matter between:
BRETT THOMAS LANG Applicant
and
ABSA BANK First Respondent
NEDBANK Second Respondent
STANDARD BANK Third Respondent
INVESTEC BANK Fourth Respondent
WESBANK Fifth Respondent
JAN VAN DER WALT (CRS) Sixth Respondent
ROBERT DEVEREUX (CRS) Seventh Respondent
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
…………..…… ........... …02/12/2024….…
SIGNATURE DATE
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ADVOCATE NIGEL RILEY Eighth Respondent
FINANCIAL SERVICE’S CONDUCT AUTHORITY Ninth Respondent
LEAVE TO APPEAL JUDGMENT
MANOIM J:
[1] This is an application for leave to appeal a judgment I delivered on 11
September 2024 dismissing the applicant’s application for a declaratory relief
on the grounds of lack of locus standi.
[2] The applicant, Bret Lang, who m I shall refer to by name , as I did in my
September decision, seeks leave to appeal on three grounds . I will deal with
each of them succesively. The first deals specifically with what he contends are
errors in my findings that he lacked locus standi:
a. He states that I erred in “…separating the individual persona of the Applicant
from his persona as a representative bringing an Application in the public
interest.” But he says the error was that “The Applicant also presents himself
to the court as a party whose legal status resultant the conduct complained
of in the Main Application, contributed to his eventual sequestration and
affected his status upon his sequestration thereby disqualifying him f rom
being a Director of a company until rehabilitated;
b. He goes on to state that: “The Applicant has an adequate interest in the
matter based on his affected status, allegedly caused by some or all of the
Respondents acting together, resulting in a change of his status from a
solvent to an insolvent;”
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c. Then he states: “ The Court erred in respect of the above in failing to
accommodate the overlapping representative capacity of the Applicant
bringing the matter in terms of Section 38 of the Constitution, both in his
individual capacity, and in the public interest;
[3] But Lang does not say why these are errors or whether there is any legal
authority that contradicts those that I relied on. What I did in the decision was
to go through the various claims for locus standi that Lang relied on and to
explain why they did not afford him standing. His complaint is that I considered
each ground separately. But apart from asserting this approach is an error he
does no t explain why. On the contrary looking at each claim for standing
discretely was to his advantage. But if he is suggesting that these grounds
should have been looked at cumulatively – meaning that they bolster one
another - then that is a proposition that is novel and for which he has not offered
any authority.
[4] To the extent that he seeks to rely on being an insolvent and that the application
would have led to him becoming solvent again that is also a mistaken
appreciation of his own case. Even if he had succeeded this was not the relief
sought in the main application and hence not one competent for me to have
made. A separate directed application would be required for this and nothing in
the decision prevents him from still doing so.
[5] A new argument he makes and one which was not made in the main application
is that the bank respondents ( i.e., the first to fi fth respondents) are “public
interest entities” and hence should be susceptible to a greater level of scrutiny
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because their actions effect the public at large. For this he relied on the
Independent Regulatory Board of Auditors’ (IRBA) proposed code dated 2016,
which has a definition of what constitutes a ‘public interest entity” and includes
in the definition banks as they are defined the Banks Act.
[6] But this argument was never raised in the main application nor is it mentioned
in the Leave to appeal. But it does not appear that the document which is dated
March 2016 and styled as an amendment is in force currently. But if it is, as one
of the respondents pointed out , it was not extant at the times the events
complained of had occurred which date back to 2010 and earlier. Nor was the
Financial Sector Regulation Act 9 of 2017, a copy of which he attaches to his
heads of argument.
[7] This is an attempt to hoist up his case for standing into the public interest realm,
because banks are now considered to be public interest entities. But on the
facts the case he has put up concerns his relationship qua client with the banks.
This relationship has always been regarded as a private interest matter.
[8] There is no authority to support this public interest approach to the banking
sector by a client vis a vis its banker . Indeed, as pointed out by counsel for
Nedbank there is authority to the contrary.
[9] In Oakbay the question was whether the Minister of Finance could intervene in
a dispute between a client and its banker to get a declaratory order. The court
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held that the dispute remained a private matter regardless of the implications it
held for the Oakbay Group the banks or the South African economy. 1
[10] The second ground of appeal relates to the fact that I described the relief sought
as abstract and hypothetical in nature. But argues Lang since he has direct
experience of what happened to him the relief is not hypothetical or abstract.
But his personal experience does not change the effect of the relief he seeks.
At its clearest the relief seeks an order declaring that the banks have in some
part of the history of the interactions with Lang , contravened some legislation
and the common law. Such relief if granted would then be taken to the NPA or
the Competition Commission to tell them to investigate further. But they are not
bound by any factual finding I make because even if they were to go to court
on the strength of a possible finding I make as Van Zyl DJP observed “factual
findings of one court do not bind another.2
[11] Nor are they bound to prosecute either . But most relevant of all they are not
precluded from investigating his complaints without a prior declaratory order .
He also persists in wanting a declaration that the behaviour of the banks at least
was contra bonos mores or contrary to public policy. It is not the job of courts
to make declaratory orders about issues of morality or public policy. That is the
sense I meant when I held the relief is abstract and hypothetical.
[12] The third ground of appeal is:
1 See Minister of Finance v Oakbay Investments (Pty) Ltd and Others 2018 (3) SA paragraph 69.
2 VN v Member of the Executive Council for Health and Social Development of the Eastern Cape 2022
JDR 1691 (ECP) at para [20].
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“The applicant seeks a declaration by this Court that the conduct
of the First to Fifth Respondents [ here he means the bank
respondents] at least, constitutes conduct that is either illegal in
terms of statute, common law, contra bonos mores, contrary to
public policy and / or such conduct was not in the public interest;”
[13] But this ground of appeal is indistinguishable from the second . If anything, it
highlights the abstract and impractical nature of the relief sought.
[14] All the respondents who opposed the leave to appeal make the point that the
Lang’s notice of appeal fails to meet the requirements of section 17 (1)(a) of the
Superior Courts Act. As one of the counsel put it, he went no further than making
the point that he disagreed with the decision, and he repeated arguments made
before me when I heard the application to dismiss. But an applicant for leave
needs to do more than this. As was held by the Supreme Court of Appeal in
Ramakatsa:
“The test of reasonable prospects of success postula tes 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 other words, the appellants in this matter need
to convince this Court on proper grounds that they have prospects
of success on appeal. Those prospects of success must not be
remote, but there must exist a reasonable chance of succeeding.
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A sound rational basis for the conclusion that there are prospects
of success must be shown to exist.”3 (Emphasis provided)
[15] That test has not been met in this case. It also appears that Lang is under the
mistaken belief that he cannot pursue his complaints with the NPA or the
Competition Commission because he has lost his locus standi to do so. In the
penultimate paragraph of his heads of argument he says the following:
“If this current Judgement is left to stand, and leave to
appeal not granted, it would further take away my locus
standi to report the matter to the NPA and Competitions
Tribunal (sic), and the matter would simply die and no
justice will be served which would not be in the Public and
or Creditors interest, as who else would or could do
anything about this matter and the matter buried.”
[16] But as I explained to Mr Lang at the hearing this is a mistake of law on his part.
The dismissal of his application does not deprive him of his right to report
matters he considers illegal or unlawful to any authority , be it the police, the
NPA or the Competition Commission.
Conclusion
[17] The leave to appeal although not stating so expressly was confined to the case
against the five bank respondents. The three other respondents were not
3 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021 paragraph 8.
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mentioned in the Notice. Two of them did not appear and I assume this is the
reason. The eighth respondent was represented by his attorney and although
he did not file heads of argument, his attorney indicated that he associated
himself with the submissions made by counsel for the bank respondents.
[18] The application for leave to appeal does not demonstrate that Lang would have
a reasonable prospect of success.4 The appeal must be dismissed.
ORDER:-
[19] In the result the following order is made:
1. The application for leave to appeal is dismissed.
2. The applicant is liable for the costs of the application to those respondents
opposing it, on a party and party scale including the costs of counsel on
Scale C, and those of senior counsel where used.
________ ____________
N. MANOIM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHNANNESBURG
Date of hearing: 28 November 2024
Date of Judgment: 02 December 2024
4 MEC for Health, Eastern Cape v Mkhitha 2016 JOL 36940 (SCA) at paragraph 16.
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Appearances:
For the Applicant: B T Lang
Instructed by: In Person
Counsel for the First Respondent: N J Horn SC
Instructed by: Tim Du Toit & Co Inc
Counsel for the Second Respondent: G D Wickins SC
L Acker
Instructed by: Kwa Attorneys
Counsel for the Third Respondent: N Konstanitinides SC
Instructed by: David Oshry & Associates
Counsel for the Fourth Respondent: S Zindel
Instructed by: Shaie Zindel Attorneys
Counsel for the Fifth Respondent: C S van Castricum
Instructed by: Glover Kanieappan Inc
Counsel for the Eighth Respondent: Mendelson
Instructed by: Mendelson Attorneys Inc