IN THE HIG H COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number : 1127 /2024
In the matter between:
CHARMAINE PRETORIUS Applicant
and
FIRSTRAND MORTGAGE COMPANY (RF) (PTY) LTD Respondent
REASONS DELIVERED ON 19 JUNE 2025
VAN ZYL AJ :
The application for leave to appeal
1. On 6 June 2025 I refused the applicant’s application for leave to appeal against
orders granting summary judgment against her in favour of the respondent, and
declaring the immovable property registered in her name specially executable
under Rule 46A, toge ther with ancillary relief.
2. I refused the application for leave to appeal expressly on the basis that, in my
view, there was no reasonable prospect that another court would come to a
OFF'ICE OF THE CHIEF JUSTICE
REPUBLJ C OF SOUTH AFRJ.CA
different conclusion, as contemplated in section 17(1)(a)(i) of the Superior Courts
Act 10 of 2013. The applicant subsequently requested reasons for the refusal.
3. At the hearing of the application for leave to appeal , the applicant essentially
reargued the case she presented to the Court at the hearing of the main
applica tion, particularly in relation to service of the respondent’s letter of demand
under section 129 of the National Credit Act 34 of 2005 . She did it in her
customary painstaking and thorough manner, but it remained the same case
nonetheless.
4. In Cellsecure Monitoring and Response and others v South African Securitisation
Programme (RF) Limited1 a Full Court restated the principle that a n appeal is a
mechanism through which higher courts review decisions made by lower courts
to ensure that the law has been correctly applied and that justice has been
achieved in the original proceedings. It is not a forum for the reintroduction of
facts, a rguments, or evidence that could have been presented during the initial
hearing but were not. The function of an appellate court is to determine whether
there were legal errors in or misapplication of the law that materially affected the
outcome of the cas e. It s aim is not to provide an opportunity for a second trial
and for the re -litigating of factual matters already addressed by the lower court.
5. The Court held:2
“[42] The appellants' approach mirrors an attempt to rehear the application for
summary judgment . In such applications, the plaintiff presents its case, and the
defendant has the opportunity to respond with a bona fide defence. If the
defence is insufficient, the Court grants summary judgment. However, this does
not allow the defen dant to indefinitely challenge the plaintiff’s claim, nor does it
permit new defences or arguments to be raised after the Court’s ruling. Similarly,
the appeal process should not serve as a forum for re -arguing a case that has
already been adjudicated .
[43] Allowing the appellants to re -argue their case on appeal would undermine
1 [2025] ZAGPPHC 98 (31 January 2025) paras 12 -15.
2 At paras 42 -43. Emphasis supplied.
the principle of finality in litigation. Repeatedly challenging a decision by re -
presenting the same issues would delay justice, burden the judicial system with
unnecessary re -hearings, and increase the cost and duration of litigation .”
6. The applicant’s arguments are addressed in the judgment that was delivered on
11 March 2025 in the main application , in particular paragraphs 21 to 34 in
relation to the section 129 notice . There is no need to repeat what was stated in
the judgment, and nothing need s to be added thereto for the purposes of the
application for leave to appeal , whether in relation to the section 129 argument
(which remai ned the focus of the case) or in relation to the other grounds of
appeal.
7. Should the applicant accordingly wish to seek leave to appeal from the Supreme
Court of Appeal under section 17(2)(b) of the Superior Courts Act (which would
be the next step availa ble to her following this Court’s refusal of her application
for leave to appeal), this should be done on the basis of the reasons set out in
the judgment in the main application .
Costs
8. This Court is unaware of any factors that would justify departing from the general
rule that costs should follow the result. The indemnity agreement upon which the
respondent sued provides for costs to be taxed on the attorney and client scale in
the event of litigation . This applies to the application for leave to appeal too, and
I accordingly refused that application with costs on the scale as between attorney
and client.
____________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
The applicant in person
For the respondent : Mr W. Jonker , instructed by Minde Schapiro & Smith