REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
1. REPORTAB LE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: YES
DATE: 3 March 2025
SIGNATURE OF JUDGE:
In the matter between:
PIONEER DRILL AND BLAST (PTY) LTD
and
CORNELIUS JOHANNES DEYSEL CASE NO: 055056 / 2023
Applicant
(Respondent in the leave to appeal)
Respondent
(Applicant in the leave to appeal)
___________________________________________________________________
JUDGMENT – LEAVE TO APPEAL
___________________________________________________________________
Woodrow, AJ:
[1] The respondent in the main application, applicant in the application for leave
to appeal, (“Mr Deysel ”) seeks leave to appeal to the full court of this
Division against the whole of the judgment and order granted on 4
November 2024 in terms of which Mr Deysel was directed to pay to the
applicant (“Pioneer ”):
a. the sum of R3,661,455.25;
b. interest on the sum of R3,661,455.25 calculated at the rate of 10,75% per
annum a tempore morae to date of final payment;
c. the costs of the application on the attorney and client scale.
[2] Pioneer opposes the application.
[3] Both parties filed heads of argument .
[4] Counsel for Mr Deysel, Mr Botes SC, confirmed in argument that the point
raised in the leave to appeal in respect of non -joinder ought to be
disregarded by the court. I agree. The point bears no prospect of success on
appeal. (See: Judgment par [21] – [30])
[5] Mr Botes SC focused his argument on two main points in contending that
leave to appeal ought to be granted and that another court would come to a
different conclusion, namely:
a. An argument in respect of the suretyship agreement;
b. An argument in respect of the interpretation of the cession
agreement.
[6] Closely linked to the first argument (which I shall refer to for ease of
reference as the “ suretyship argument ”) is an argument raised regarding
‘dispute of fact’, and the applicable ‘ Plascon Evans ’ rule. The court was
referred to paragraphs 26.1 to 26.4 of the answering affidavit in support of
the suretyship argument . In these paragraphs , Mr Deysel states as follows:
26.1. I cannot recall that I have bound myself, in my personal capacity, as surety,
towards the Applicant, as alleged by Mr Potgieter in this paragraph.
26.2. I am, however, convinced that the legal consequences of the suretyship
upon which the Applicant relies were not explained to me at all.
26.3. I have limited legal knowledge or experience and I would not have bound
myself as a surety in the prevailing circumstances. Mr Potgieter and the
Applicant were duty bound to at least direct my attention to the legal
consequences of a suretyship, which they have not done.
26.4. ln the event that it is found that I have executed the deed of suretyship
upon which the Applicant relies, I respectfully submit that I should not
attract any liability therefrom, by virtue of the fact that I was totally
unaware of the nature of the document and the legal consequences
thereof.
[7] When asked by the court what relevant disputes arise from the aforesaid, it
was submitted on behalf of Mr Deysel that the disputes that arise are (a)
whether or not Pioneer pointed out the consequences of the suretyship
agreement to Mr Deysel and (b) whether there was a duty on Pioneer to
point out such consequences.
[8] In my opinion, the argument is without merit. There was no legal duty on
Pioneer to point out the consequences of the suretyship agreement.
[9] Further, a s addressed in the judgment, the facts demonstrate that Mr Deysel
knew he was signing a suretyship agreement and the consequences thereof .
(Judgment , par [34]) Further, as pointed out in footnote 11 of the judgment,
the suretyship document cannot be described as a “ trap for the unwary ”, and
a reasonable person would not have been misled thereby. (Cf. the very
different document in Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA
419 (SCA) par [10] – [12]). Mr Deysel makes out no case for a defence
based on iustus error . (Cf. Tesoriero v Bhyjo Investments Share Block
(Pty) Ltd 2000 (1) SA 167 (W) at 175 – 180. See also: Slip Knot
Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) at par
[9]; Hartley v Pyramid Freight (Pty) Ltd t/a Sun Couriers 2007 (2) SA
599 (SCA) at par [9]. )
[10] In my opinion , there is no reasonable prospect that another court would
uphold the suretyship argument .
[11] The second main argument advanced by Mr Bot es SC concerns the
interpretation of the cession agreement (which I shall refer to for ease of
reference as the “ cession interpre tation argument ”). With reference to the
‘cession interpre tation argument ’, I was referred to paragraph 36 of the
answering affidavit , and s pecifically to paragraphs 36.3 and 36.4 thereof
which read as follows:
36.3. Deymine, in any event, ceded its right to claim payment from IPP to the
Applicant, which had the effect that Deymine could no longer demand
from IPP to make any payment to it, as IPP was liable and responsible
towards the Applicant.
36.4. On a proper interpretation and analysis of the cession agreement, the
Applicant had every right in law to claim payment directly from IPP .
Deymine was therefore absolved from any further responsibility or liability
towards the Applicant.
[12] The submission on be half of Mr Dey sel is that on a proper interpretation and
construction of the cession agreement, the liability of Deymine ‘shifted ’ to
IPP.
[13] However, the express terms of the cession agreement ( “FA5”, CaseLines 01 -
52) do not support the argument. The written terms do not state or provide
for that which Mr Deysel contends for.
[14] Moreover, insofar as this may be of any relevance , Mr Deysel ’s own conduct
is inconsistent with the interpretation which is now sought to be advanced –
the cession was concluded in May 2022 (CaseLines 01 -54), but Mr Deysel
proposed a repayment plan on behalf of Deymine in November 2022 .
(Phoenix Salt Industries (Pty) Ltd v The Lubavitch Foundation of
Southern Africa (330/2023) [2024] ZASCA 107 (03 July 2024) par [25] –
[26])
[15] The fact that in terms of the cession agreement , Deymine ceded to Pioneer
its right to demand payment from IPP does not release Deymine from its
liability or obligation to make payment to Pioneer (nor does th is ‘shift’ the
liability of Deymine to IPP) .
[16] I dealt with the argument in respect of the interpretation and consequence of
the cession agreement in paragraphs [40] – [46] of the judgment. In my
opinion , there is no reasonable prospect that another court would conclude
that the cession agreement absolved Deymine of its liability to Pioneer .
Conclusion and order
[17] Having perused the application for leave to app eal, and having considered
the grounds raised therein and the arguments advanced by the parties , in
my opinion an appeal would not have a reasonable prospect of success .
Furthermore, th ere are no other compelling reason s why the appeal should
be heard .
[18] The application for leave to appeal ought according ly to be dismissed.
[19] Both parties made submissions in respect of costs. In my view the
application for leave to appeal does not raise issues of significant complexity.
However, the value of the claim is not insignificant, and the relief claimed is
quite clearly important to both parties. In my view, having considered all
factors raised by the parties in this regard, an order in respect of costs of
counsel on scale B is appropriate.
[20] Accordingly, an order is granted in the terms set out below.
1. The application for leave to appeal is dismissed with costs, such
costs to include the costs of counsel on scale B.
WOODROWAJ
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties and I or
parties' representatives by e-mail and by being uploaded to CaseLines . The date and
time for the hand down is deemed to be 10h00 on this 3RD day of March 2025.
Appearances
Counsel for the Applicant: C Bester
Instructed by: Fluxmans incorporated
Counsel for the Respondent: FW Botes SC
instructed by: Macintosh Cross & Farquharson Attorneys
Date of Hearing: 28 February 2025
Date of Judgment: 3 March 2025