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engine number [...] and chassis number [...] ('the BMW X5')by entering into a
manual instalment sale agreement. It was alleged that on the same day, he also
entered into an electronic instalment sale agreement (the agreement) with the
applicant, purchasing a 2015 Jaguar XJ 5.0 VB S/C Supersport LWB with
engine number […] and chassis number […] (the Jaguar) that was allegedly
sold for just above R2.7 million to the respondent.
[3] It was alleged that the respondent breached the agreement regarding the
Jaguar by failing to make due monthly instalments in terms of the agreement.
The Jaguar was subsequently sold on auction by agreement between the
parties. The plaintiff instituted an action against the respondent for damages
emanating from the difference between the outstanding balance ow ed on the
Jaguar and its sale value. The trial served before the court. The court absolved
the respondent from the instance at the close of the applicant's case. Now the
applicant has lodged an application for leave to appeal. The application is
opposed.
[4] This court does not propose to set out the exhaustive grounds of appeal again
or repeat that which is set out in the judgment, since that which was relevant
was dealt with in the judgment.
[5] The grounds for leave to appeal have been fully ventilated in the applicant's
heads of argument. They are submissions and contentions about how this court
should have exercised its discretion by not granting the application for
absolution from the instance after the closure of the applicant's case, in that the
court ought to have let the trial proceed.
[6] In summation, the following are the grounds of the bout on the judgment in that:
[6.1] The fact that the respondent pleaded in the alternative that there was
some fraud perpetuated against him. The evidence as a whole showed
that the respondent was fully conversant in English and understood
contracts. The court ought to have found that the defence of fraud played
contracts. The court ought to have found that the defence of fraud played
no role in determining the issue of absolution from the instance.
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[6.2] The court erred in finding that Mr. Khotsamotladi's testimony, that at the
time of the agreement the applicant did not have or utilised the
Debicheck system but that the agreements were entered into via a One
Time password (OTP), as a ground to find that no contract was entered
into. The use of an OTP and or use of the term "Debicheck" are not
mutually exclusive and form part of the same electronic verification
process.
[6.3] There was no evidence presented, as the respondent had not yet
testified, that showed that the respondent did not pay the deposit . The
respondent can nominate any entity and or person to make payment on
its behalf, and this needs to be dealt with under cross-examination of the
respondent.
[7] The applicant submitted that there are reasonable prospects that another court
would come to a different finding. Reliance was placed on the matter of Spring
Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash & Another,
1 where the
Supreme Court of Appeal confirmed that electronic communication and
signatures can constitute valid agreements, and that representation need not
be in person, especially where authentication measures (e.g. OTP, passwords)
are in place.
[8] The court was also referred to other case laws, including Schoeman v Firstrand
Bank Limited,
2 where the court dealt with exception.
[9] It was argued on behalf of the applicant that there is a compelling reason to
grant leave to appeal as contemplated by section 17(1)(a)(ii) of the Superior
Courts Act, Act 10 of 2013, since the facts are novel. The matter raises
important points of law relating to the status of electronically concluded
contracts and the evidence needed to prove the existence thereof in terms of
ECTA.
1 (725/13) [2014] ZASCA 178; 2015 (2) SA 118 (SCA) (21 November 2014).
2 (43859/2021) [2024] ZAGPPHC 58 (25 January 2024).
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[10] The respondent filed no cross-appeal. It opposed the application and argued in
favour of the judgment that the court's reasoning was fully set out in the
judgment.
[11] In MEC for Health, Eastern Cape v Mkhitha and Another 3 (Mkhitha), the
Supreme Court of Appeal, held that: "An applicant for leave to appeal must
convince the court on proper grounds that there is a reasonable prospect or
realistic chance of success on appeal. A mere possibility of success, an
arguable case or one that is not hopeless is not enough. There must be a
sound, rational basis to conclude that there is a reasonable prospect of success
on appeal."
[12] Regarding the compelling circumstances as envisaged by Section 17(1)(a)(ii)
of the Superior Courts Act. The applicant submitted that it was in the interest of
justice that leave be granted as the facts are novel and bound to develop the
law.
[13] In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd
4 (Caratco), it was held:
"A compelling reason includes an important question of law or a discreet issue
of public importance that will have an effect on future disputes. But here, too,
the merits remain vitally important and are often decisive."
[14] Applying the tests in Mkhitha and Caratco, respectively, and assessing the
merits of the applicant's case, including their grounds of appeal, the court could
not find any ground or compelling factors necessitating the hearing of the
applicant's appeal.
[15] In my respectful view, the court judicially exercised its discretion in granting the
absolution from the instance.
3 (1221/2015)(2016) ZASCA 176 (25 November 2016).
4 2020 (5) SA 35 (SCA) para [2].
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[16] Consequently, the application for leave to appeal cannot succeed. The
following order is made:
Order
The application for leave to appeal is dismissed with costs.
________ ________
N. Mazibuko
Acting Judge of the High Court of South Africa
Gauteng, Pretoria
This judgment is digitally submitted by uploading it onto Caselines and emailing it to
the parties.
Representation
Counsel for the applicant: Advocate C J Welgemoed
Instructed by: Strauss Daly Incorporated
Counsel for respondent: Advocate P A Wilkins
Instructed by: Sarlie & Associates Incorporated
Date of hearing: 22 July 2025
Judgment delivered on: 13 August 2025