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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: A068332-2024
In the matter between:
LI FENG TEXTILES (PTY) LTD First Appellant
NAI-CHIANG WANG Second Appellant
JUI CHANG WANG Third Appellant
and
BANK OF TAIWAN INCORPORATED IN First Respondent
REPUBLIC OF CHINA (T/A BANK OF TAIWAN
SOUTH AFRICA BRANCH)
INDUSTRIAL DEVELOPMENT CORPORATION Second Respondent
OF SOUTH AFRICA LTD
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ _________________________
DATE SIGNATURE
2
JUDGMENT
MAHOSI AJ (Twala J and Raubenheimer AJ concurring)
Introduction
[1] The crisp issue in this appeal is whether the judgment and order of Van
Niewenhuizen AJ sitting as a Court a quo declaring the mortgaged property, being
Erf 6[…] L[…] Ext 26, Township, Registration Division J.Q. City of Johannesburg,
Gauteng, executable and ordering the first to third appellants to pay R11 7 10 869.57
plus interest and costs, is appealable. This issue arises against the backdrop of an
order granted in an unopposed motion court in the presence of the respondent's
counsel, in circumstances where an answering affidavit was filed out of time without
any application for condonation.
[2] The appellants unsuccessfully sought leave to appeal from the Court a quo.
This appeal is with the leave of the Supreme Court of Appeal (“SCA”). Only the first
respondent opposed the appeal.
The parties
[3] The first appellant, Li Feng Textiles (Pty) Ltd, is a company duly incorporated
in accordance with the company laws of the Republic of South Africa. The second
appellant, Nai-Chiang Wang, is a director and shareholder o f the first appellant. The
third appellant, Jui Chang Wang, is the second appellant’ s father. Both the second
and third appellants bound themselves as sureties for the first appell ant’s debt in
favour of the first respondent.
[4] The first respondent , Bank of Taiwan Incorporated in the Republic of China
(t/a Bank of Taiwan South Africa Branch) , is a company i ncorporated in the Republic
of China and registered as an external company in the Republic of South Africa. The
second respondent, Industrial Development Corporation of South Africa Ltd (“IDC”),
3
is a state-owned development finance institution incorporated in terms of section 2 of
the Industrial Development Corporation Act1 and is cited as having an interest in the
matter as a second mortgage bondholder.
Background facts
[5] The first respondent instituted motion proceedings against the first, second
and third appellants (“the appellants”) for the pay ment of R 11 710 869. 57 with
interest and to declare the mortgaged property under mortgage number
B000009211/2014 executable. The appellants opposed the relief and filed a notice in
terms of Rule 6(5)(d)(iii)
2 challenging the authority of the first respondent and Lynn
Houh, the deponent of the founding affidavit, to institute and prosecute the
aforementioned proceedings.
[6] On 24 May 2023, Opperman J issued an order , by agreement between the
parties, in the following terms:
“1. The points of law raised by the first to third respondents in their Rule
6(5)(d)(iii), as amended on 27 January 2023, are dismissed with costs as
between attorney and client.
2. The hearing of the merits of the matter is postponed sine die.
3. The first to third respondents are ordered to file their answering
affidavit, if any, by 12 June 2023.
4. The applicants are to file their replying affidavits, if any, by 26 June
2023.
5. The applicants shall file supplementary heads of arguments by 10 July
2023.
6. The first to third respondents shall file supplementary heads of
arguments by 24 July 2023.
1 Act 22 of 1940, as amended.
2 Rule 5(d) reads:
“Any person opposing the grant of an order sought in the notice of motion must-
…
(iii) if he or she intends to raise any question of law only, he or she must deliver notice of his or
her intention to do so, within the time stated in the preceding subparagraph, setting forth such
question.”
4
7. Should the first to third respondents fail to file an answering affidavit by
12 June 2023, the matter may be enrolled on the unopposed motion roll.”
[7] The appellants served the first respondent with an unsigned answering
“affidavit” on 12 June 2023 and a signed and commissioned one three days later, on
15 June 2023, i n which they also sought condonation for its late filing. In response,
the first respondent ’s legal representatives informed the appellants’ attorneys by
email that they were instructed to enrol the main application on an unopposed roll
and served the notice of Set Down for 27 July 2023.
[8] Although the appellants’ counsel was present at the hearing on 27 July 2023,
the Court a quo granted the order on an unopposed basis and refused to condone
the late filing of the answering affidavit. Upon request for its reasons, it stated:
“[8] On the 27 July 2023 the applicant’s legal representative applied for
judgment and, although the respondents were out of time, their representative
appeared and made reference to the affidavit filed in support of an application
for condonation. Given the fact that there was no formal notice of application
for condonation in terms of Rule 6 of the Uniform Rules of Court, I refused to
grant such condonation and granted judgment in favour of the applicant
against the first, second and third respondents, jointly and severally, the one
paying the other to be absolved in the following terms…”
[9] It is the above ruling that the appellants seek to appeal and set aside.
Submissions
[10] The appellants submitted that the Court a quo erred in failing to consi der their
answering affidavit, treating it as pro non scripto and finding that Rule 6(11)
3 of the
Uniform Rules required the condonation affidavit to be accompanied by a formal
notice. They argued that the Court a quo elevated form over substance where there
3 Rule 6(11) reads:
“Notwithstanding the aforegoing sub -rules, interlocutory and other applications incidental to
pending proceedings may be brought on notice supported by such affidavits as the case may
require and set down at a time assigned by the registrar or as directed by a judge.”
5
was no indication that the first respondent suffered any prejudice as a result of the
late filing of the answering affidavit.
[11] The first respondent submitted that the Court a quo’s order was not
appealable. It denied that the Court elevated form over substance and contended
that it was entitled to enrol the main application on an unopposed roll as the
appellants failed to file their answering affidavit on the date ordered by Opperman J.
Further, t he first respondent asserted that the appellants were not denied an
opportunity to be heard as they failed to file a notice of condonation application and
their counsel failed to move the condonation application from the bar.
Legal framework and analysis
[12] Pitelli v Everton Gardens Projects CC
4 (Pitelli) is authority for the proposition
that a court order is only appealable once it becomes final. Relying on Zweni v
Minister of Law and Order5, it held:
“[F]or an order to be appealable it must have as one of its features that the
order is final in its effect, by which I mean that it is not susceptible to being
revisited by the court that granted it …”6
[13] Regarding what “final” means, the SCA explained that:
"An order is not final, for the purposes of an appeal, merely because it takes
effect unless it is set aside. It is final when the proceedings of the Court of first
instance are complete and that Court is not capable of revisiting the order."7
[14] On whether the Court a quo’s order was granted i n default, the first
respondent referred us to the judgment in Ferreiras (Pty) Ltd v Naidoo and another8
(Ferreiras), which had to determine a similar issue and followed a full court decision
in Rainbow Farms (Pty) Ltd v Crockery Gladstone Farm .9 In the latter case, the full
4 2010 (5) SA 171 (SCA).
5 1993 (1) SA 523 (A).
6 Id at [20].
7 Id at [27].
8 2022 (1) SA 201 (GJ).
9 2017 JDR 1758 (LP).
6
Court of the Limpopo Division was faced with an appeal of a judgment in which the
Court a quo, per Muller J, dismissed an application to rescind a judgment that was
granted in default. The judgment sought to be rescinded was granted by Phatudi J
after refusing an adjournment and granting judgment in the absence of the answering
affidavit. The full Court had to determine, inter alia, whether the appellant was in
default despite the attendance of its counsel in Court when the judgment was granted
and made out a case for rescission. On whether the appellant was in default, the full
Court held as follows:
“[10] The Court a quo decided that the judgment was not a judgment taken
on default of appearance by the appellant. I t did so on the basis that the
Appellant's Counsel was present in C ourt when the order was made. The
Court a quo erred in this regard. This matter was an application and the
presence or absence of a party can only be determined by whether the party
has submitted affidavits or not. The presence of the actual party and/or
Counsel in Court is irrelevant to that issue. In the absence of any affidavits
(bearing in mind that there is no option available for the party to testify at such
a hearing) it is logical to conclude that the party is in default of appearance
when the order was made notwithstanding that, counsel may have been in
Court.
[11] In my view where opposing papers have not been filed this is a “default”
even if the respondent in the matter or his legal representative is present in
Court. See Morris v Autoquip (Pty) Ltd 1985 (4) SA 398 (WLD); First Nation
Bank of SA v Myburg and Another 2002 (4) SA 176 (CPA).
[12] The question of what is meant by “ default” was considered in Katritsis v
De Macedo 1966 (1) SA 613 (A). In this matter the Appellate D ivision (as it
was then) held that “default” which then as is the case now is not defined in
the R ules or the Act, meant a default in relation to filing the necessary
documents required by the rules in opposition to the claim. In casu the
judgment was granted in the absence of an opposing affidavit by the appellant
and was therefore default judgement even if it was not a default in a sense of
absence of the party."
7
[15] The full Court set aside Phatudi J’s jud gment and directed the respondent to
file its answering affidavit to the main application. On appeal to the SCA, the appeal
suffered a similar fate. That Court said:
“On the test articulated by this Court in Zweni v The Minister of Law and Order
1993 (1) SA 523 (A), the order is not appealable if it has the following
attributes (a) not final in effect and is open to alteration by the court below; (b)
not definitive of the rights of the parties; and (c) does not have the effect of
disposing of a substantial portion of the relief claimed See also SA Informal
Traders Forum v City of Johannesburg 2014 (4) SA 971 (CC).”
10
[16] Before us, the first respondent's counsel conceded that by ignoring the
answering affidavit, the Court a quo did not consider the merits concerning
condonation. It refused to grant condonation because of a technicality , there being
“no formal notice of application for condonation in terms of Rule 6 of the Uniform
Rules of Court” . Consequently, an order was granted only on the respondent's
papers without the appellants' version.
[17] Although the Court a quo stated in its reasons for an order that it "refused" to
grant the condonation, no such order was recorded. I t is, therefore, apparent that the
Court a quo had no regard to the answering affidavit the appellants sought to place
before it. In light of the aforementioned authorities, Court a quo’ s order is not
appealable. Consequently, the appeal must be dismissed and the costs must follow
the result.
[18] Accordingly, the following order is made:
Order
1. The appeal is dismissed with costs on scale B.
D. MAHOSI J
ACTING JUDGE OF THE HIGH COURT
10 Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd [2019] ZASCA 61, at para 4.
8
Heard: 20 November 2024
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The date for hand-down is deemed to be 24
December 2024.
Appearances
For the appellants: Advocate M.D. Silver
Instructed by: Chen & Lin Incorporated Attorneys
For the first respondent: Advocate L. Meintjes
Instructed by: Rothman Phahlamohlaka Incorporated Attorneys