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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION , KIMB ERLEY)
In the matter between:
DJDE WAAL
And
STANDARD BANK OF S.A. LIMITED
(Registration Number 1962/000738/06)
In re:
STANDARD BA N K OF S.A. LIMITED
(Registration Number 1962/000738/06)
And
DJ DE WAAL
Coram: Lever J
Case No: 1398/2023
Applicant/Defendant
Re spondent/Plaintiff
Applicant/Plaintiff
Re spondent/Defendant
JUDGMENT ON LEAVE TO APP EAL
Lever J
Page 1 of 9
YES /NO
YES/NO
YES/NO
YES /NO
1. This is an application for leave to appeal a judgment handed down on the 4
April 2025, wherein I awarded Summary Judgment to the plaintiff in respect
of three claims. The first being an overdraft facility and the other two were in
respect of certain instalment sale agreements.
2. To avoid confusion the applicant for leave to appeal will be referred to as the
defendant or defendant/applicant and the respondent in the application for
leave to appeal will be referred to as the plaintiff or plaintiff/respondent.
3. The Notice of App lication for Leave to Appeal is some 7 pages long and
consists of 13 paragraphs setting out the grounds upon which leave to appeal
is sought. These 13 paragraphs can be divided into 4 broad themes. It is
convenient to deal with the issues raised in the application for leave to appeal
on the basis of the 4 themes set out hereunder. It is therefore not necessary to
deal with each of the grounds listed as a ground for leave to appeal in the said
Notice of Application for Leave to Appea l. In fact, Ms Boonzaaier w ho
appeared for the defendant/applicant herein, at the hearing of the application
for leave to appeal approached her argument on a thematic basis. I intend to
deal w ith the issues on a similar basis.
4. However , before turning to these themes it is necessary to set out the current
position in regard to the test as to when and in what circumstances leave to
appeal should be granted. The test of what needs to be established in order to
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be granted the necessary leave to appeal is now set out in s 17( 1) of the
Superior Courts Act1, the relevant provisions of which read as follows:
"17(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-
( a) (i) the appeal wou ld have a reasonable prospect of success;
or
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the
matter under consideration;
(b) The decision sought on appeal does not fall within the ambit
of s 16(2)(a); and ... "
5. On the face of it, the word ing of the said section, of the Superior Courts Act
as quoted above, is that the requirement for granting leave to appeal is more
stringent than was previously required. This is in fact what Bertelsman J held
in the case of MONT CHE VAUX TRUST v TINA GOOSEN AND OTHERS 2.
Bertelsman J held that the test now is not whether another court might come
to a different conclusion but in using the word "would" in the said section of
the Superior Court Act, the test now is that there is a measure of certainty that
another court will reach a different conclusion to the court of first instance.
6. Having regard to the change from 'could' to 'would' brought about by section
17(1 )(a)(i) of the Act there existed some differing approaches on how
1 Act 10 of 2013.
2 2014 JDR 2325 (LCC).
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'reasonable prospects of success' would be determined. Such controversy as
might have existed appears to have been settled in the case of RAMAKATSA
& OTHERS v AFRICAN NAT IONAL CONGRESS & ANOTHER 3, where
Dlodlo JA set out the position as follows:
" ... The test for reasonable prospects of success postulates 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. ln 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. A sound rational basis for the conclusion that there are
prospects of success must be shown to exist."4 (references omitted)
7. The first theme pursued by the defendant/applicant appears in paragraphs 2 to
6 of the Notice of Application for leave to appeal. Broadly, these grounds of
appeal deal with the knowledge that the deponent to the affidavit in support of
summary judgment had in relation to the business affairs of the
defendant/applicant and could allegedly not depose to facts that could counter
the contentions of the defendant/applicant.
8. In pursuing this argum ent, the defendant applicant makes reference to
paragraph 7 of his plea which reads as follows:
3 RAMAKATSA & OTHERS v AFRICAN NATIONAL CONGRESS & ANOTHER (Case No: 724/2019)(2021] ZASCA 31
(31 March 2021).
4 Ramakat sa case above., para [10].
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"Furthermore, insofar as reference is made to clause 4.1.2 of the agreement
referring to a material deterioration of the defendant's financial position, it
is denied that there was any such material deterioration, or that the
plaintiffs decision to claim the outstanding on the overdraft facility was
based on any alleged material deterioration of defendant's financial
position."
9. The defendant/applicant's reliance on this contention is misplaced on a factual
level, because: The grounds upon which there might be a breach under the
provisions of the relevant contract is pleaded in paragraphs 6.1 to 6.3.2 of the
plaintiff/respondent's Particulars of Claim; Paragraph 7 of the
defendant/applicant's plea deals with paragraph 6.2 of the
plaintiff/respondent's Particulars of Claim; The actual grounds of breach
pleaded and relied upon by the plaintiff/respondent are pleaded in paragraphs
8 to 8.3 of its Particulars of C laim; and Plaintiff/respondent did not plead
'material deterioration of the defendant/applicants financial position' as an
event of breach.
10. Tellingly, plaintiff/respondent pleaded as a ground of breach that the under the
provisions of the agreement in respect of the overdraft facility,
defendant/applicant" ... (failed) to make payments of the amounts as agreed
upon the dates stipulated in the Ov erdraft Faci I ity A greement ; ... ". T his arises
from a provision in the said agreement that on the 30 November 2020 that the
overdraft facility wou ld be reduced from R715 ,000.00 to R260 ,000.00 and
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defendant/applicant was required to make a deposit on or before the said date
to bring the amount owed under the said agreement within the R260 ,000.00
limit. The defendant/applicant did not do so. The defendant/applicant sim ply
failed to raise a bona fide defence to this claim.
11.l refer to paragraphs 6 to 16 as well as paragraph 66 of my judgment in the
Summary Judgment application. For the reasons set out above and for the
reasons set out in the said paragraphs of my judgment in the Summary
Judgment application, there is no rational or realistic basis to come to the
conclusion that another court 'would' or even 'could' reasonably come to a
different conclusion.
12.Turning now to the second theme pursued by the applicant/defendant as a
ground for leave to appeal. This theme appears from paragraphs 8 to 8.3 of the
Notice of Application for leave to appeal. The contentions made in paragraphs
8.2 and 8.3 of the Notice of Application for Leave to Appeal are interwoven
with the first theme already dealt w ith above. T hey wou ld fail for the reasons
already set out in respect of the said first theme.
13.The contentions made in paragraph 8.1 of the Notice of Application for Leave
to Appea l have already been dealt with by me in paragraphs 15, 16 and 52 of
my judgment in the Summary Judgment application.
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14. On the second theme and for the reasons set out above, there is no rational or
realistic basis to come to the conclusion that another court 'would' or even
'could' reasonably come to a different conclusion. Similarly, this second
theme as a basis for leave to appeal must fail.
15.The third ground of appeal appears at paragraph 9 of the Notice of Application
for Leave to A ppeal. It reads as follows: "Section 129 notices does (sic) not
contend cancellation."
16.It is not clear how this form s a basis for granting leave to appeal. To the extent
that it was required and relevant I dealt w ith the aspect of cancellation in
paragraphs 59 to 67 of my judgment in the sum mary judgment application.
There is no rational basis to conclude that another court 'would' or 'could'
reasonably come to a different conclusion. Accordingly, the third theme as a
basis for leave to appeal must also fail.
I 7. The fourth and final theme as a basis for leave to appeal is set out in paragraphs
IO to 13 of the Notice of Application for Leave to Appea l. The thrust of this
theme is that the defendant/applicant has not had an opportunity to lead
evidence and test the plaintiff/respondent's case m court. That
defendant/applicant has not had an opportunity to lead evidence to establish
the alleged verbal amendment of one of the instalment sale agreements. That
defendant/applicant has not had the benefit of discovery. That sum m ary
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judgment is an extreme measure that has deprived the defendant/applicant an
opportunity to have his case tested in court.
18.The contention that defendant/applicant has lost the opportunity to lead
evidence on the alleged verbal amendment of one of the instalment sale
agreements is made despite a non-variation clause that would preclude such
evidence.
19.This fourth theme does not provide the defendant/applicant with a basis to
seek leave to appeal. In summary judgment proceedings and more particularly
under the provisions of Rule 32(3)(b) the defendant/applicant is obliged by
way of an affidavit to set out the facts that disclose fully the nature and grounds
of his defence to the plaintiff/respondents claims. Furthermore, the
defendant/applicant must satisfy the court that he raises such defence( s) in a
bona.fide manner. This failure to set out a defence based on factual contentions
under oath and the failure to establish his bona fides is evident from reading
my judgment in the Summary Judgment application. Accordingly, on this
fourth theme, the defendant/applicant has also failed to establish a rational
basis for concluding that another court could or would come to a different
conclusion.
20.In the circumstances the application for leave to appeal stands to be dismissed.
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21. The final remaining issue is the issue of costs. In all of the agreements relevant
to this matter the applicant/defendant agreed to pay costs relating to litigation
to recover any amount owing under the agreements on an attorney and client
scale. T he plaintiff/defendant is the successful party in these proceedings and
I have not been made aware of any circumstances that would justify a
departure from the general rule that costs should follow the event.
Accordingly, the following order is made:
l. The application for leave to appeal is dismissed.
2. T he defendant/applicant is to pay the costs of this application on an
attorney and client scale.
----
L.G Lever
Judge
Northern Cape Division, Kimberley.
Representation:
For the Applicant:
Instructed by:
For the Defendants:
Instructed by:
Date of Hearing:
Date of Judgment:
ADV MM BOONZAAIER
MAJIEDT SWART INC.
ADV S TSANGARAKIS
PGMO ATTORNEYS INC.
06 August 2025
15 August 2025
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