IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: ate
(2) OF INTEREST Tf) OTHER JUDGES; ~~?
(3) REVISED: yp
Date: Signature: _/" {ere a,
. Q3/Flans CASE NO: 26936/2015
DATE: 23 July 2025
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
and
LEO CHARLES BAXTER Respondent
Coram: Ternent AJ
Heardon: 23 May 2024
Delivered: 23 July 2025
Summary:
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by
circulation to the Parties/their legal representatives by email and
by uploading it to the electronic file of this matter on CaseLines.
The date for hand-down is deemed to be 23 July 2025.
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JUDGMENT: LEAVE TO APPEAL
TERNENT, AJ:
[1] The respondent seeks leave to appeal the judgment granted in favour of
the applicant, on 3 January 2024, together with the costs order on the
attorney client scale. The respondent's counsel clarified the request in the
application for leave to appeal’ and confirmed that, if leave is granted, it
should be to the Full Court of this division. He also contained his argument
(and the heads of argument filed on behalf of the respondent), to the
grounds of appeal set out in paragraphs 1, 2 and 7 of the application for
leave to appeal. The remaining grounds were not persisted with.
[2] As | understood the respondent's counsel’s argument there was “sufficient
evidence” disclosed, in the respondent's answering affidavit, to establish
bona fide disputes, that should have resulted in my exercising my
discretion in favour of a referral of the matter to trial.
[3] In this regard and, as set out in the heads of argument,” it was submitted
that the respondent's defences allegedly comprised :
[3.1] the proper construction of the special power of attorney;
[3.2] the market value of the properties;
[3.3] the conduct of the applicant in having sold the properties for
R12 000 000,00 and not more; and
1 CaseLines 023-3 to 023-6
2 Paragraph 9.4, CaseLines 024-6
3
[3.4] the quantum of the respondent's damages.
[4] As is clear from my judgment these alleged disputes were not raised at
the time and have been clarified and raised, in argument, for the first time
in this leave to appeal. There was no clarity as to what was to be referred
to trial at the hearing of the matter before me.
[5] Albeit that they were not raised in the hearing, | intend to deal with each
of these alleged defences in the context of whether they do indeed raise
bona fide disputes capable of being referred to trial, as submitted by the
respondent's counsel.
The proper construction of the Special Power of Attorne
(6] In the application for leave to appeal the respondent contends that | erred
in not finding that there was an “implied” term agreed upon in the special
power of attorney (“SPA”). This term is allegedly to the effect that the
properties comprising the Stonefield Polo Estate, would be disposed of
“for a market related rental’. | accept that this was a typographical error
and that the respondent meant to refer to a market related purchase price.
[7] In the submissions made to me by the respondent's counsel he, also
contended for a tacit term to this effect. This, he submitted, arises from
the wording of the indemnity, contained in the SPA, which the respondent
gave the applicant provided that it acted bona fide in exercising its rights
under the SPA. The contention was that the applicant did not conduct
itself in a bona fide manner because it sold the properties for less than
their market value in breach of the indemnity.
[8] In Food & Allied Workers Union v Ngcobo N.O.* a tacit term is defined
3 2014 (1) SA 32 (CC), paragraph 37