INTRODUCTION
[1] The applicant seeks leave to appeal against the judgment and order delivered on
16 January 2026, in terms of which the applicant’s application for payment against the
first respondent (Oceanside Trading for 41 CC) was dismissed with costs. The
application was dismissed after the Court upheld a point of law raised in terms of Rule
6(5)(d)(iii), namely that the founding affidavit did not sustain the relief sought and failed
to disclose a cause of action.
[2] The first respondent opposed the application for leave to appeal and the
reasons for opposition shall later follow.
FACTUAL BACKGROUND
[3] The applicant supplied fuel to Tradewith 55 (Pty) Ltd in business rescue , which
ceded its book debts as security. Tradewith’s debtor included the first respondent
(Oceanside Trading for 41 CC). The applicant claimed the first respondent owed two
specific amounts.
[4] The first respondent opposed the application and delivered a notice in terms of
Rule 6(5)(d)(iii), raising a point in limine to the effect that the averments contained in
the applicant’s founding affidavit fail to sustain the relief sought in the notice of motion.
In particular, the first respondent contended that the applicant failed to establish any
underlying cause of action against it, in that no primary evidence was placed before
the court to demonstrate the alleged indebtedness.
[5] The court found that the point in limine raised by the respondent is accordingly well-
founded and is dispositive of the application.
GROUNDS FOR APPEAL
[6] The applicant advances several grounds of appeal as follows:
6.1 that this Court erred in upholding the Rule 6(5)(d)(iii) objection in the absence of
an answering affidavit,
6.2 that in refusing to admit a further affidavit, and
6.3 In finding that the founding papers failed to establish a cause of action.
[7] The applicant complained about the fact that the first respondent did not file an
answering affidavit and thus did not challenge any of the allegations contained in the
founding affidavit.
[8] The applicant argued that t he court erred in requiring detailed proof of the
underlying debt at the founding stage wrongly refused to admit the applicant’s replying
and further affidavits, which responded to procedural and registration -number issues
and the dismissal was unjustified because the applicant’s factual allegations,
supported by annexures, indicated a sufficient cause of action. Counsel for the
applicant submitted that the applicant’s affidavits were relevant, and the refusal was
an improper exerc ise of discretion, potenti ally prejudicing the applicant’s case. The
court misapplied its discretion by failing to properly consider applications for leave to
admit affidavits and by giving undue weight to procedural formalities.
[9] The applicant further submitted that t he court conflated facts that should have
been treated as material facts necessary to establish a ceded claim.
[10] Applicant relied on the judgment in the Engen Petroleum Limited v Macla
Commodities (Pty) Ltd and Others 2026 JDR which was heard at the Gauteng
Division, where Condonation of the late filing of the replying affidavit is granted. The
respondent’s counterclaim was dismissed. The first respondent is ordered to pay the
sum of R141 719.72 plus interest at a prescribed rate from 19 April 2023 to the date
of payment.
[11] According to the applicant, it was not necessary for the applicant to prove the
underlying cause of action, including the debt allegedly owed by the first respondent
to the cedent.
[12] It is submitted that the appeal has a reasonable prospect of success on those
issues, alternatively that there is a compelling reason why the appeal should be heard
within the meaning of section 17(1)(a) of the Superior Courts Act 10 of 2013.
APPLICABLE LEGAL PRINCIPLES
[13] In terms of section 17(1) of the Superior Courts Act 10 of 2013, leave to appeal
may only be granted where the court is of the opinion that the appeal would have a
reasonable prospect of success, or where there are compelling reasons why the
appeal should be heard.
[14] The court emphasizes that leave to appeal should only be granted if the appeal
has a reasonable prospect of success or other compelling reasons exist. That is
subject to the court’s discretion and the threshold in terms of section 17(1) of the
Superior Courts Act. The standard now requires a higher degree of certainty that the
appeal could succeed, as established in case law like Mont Chevaux Trust v Goosen
and 18 Others [2014] ZALCC 20 this case involved an eviction under the Extension of
Security of Tenure Act 62 of 1997. The Land Claims Court established that the
threshold for granting leave to appeal was raised by the Superior Courts Act and held
that the word "would" in the new statute indicates a measure of certainty that another
court will differ from the court whose judgment is sought to be appealed against.
[15] The case of Caratco (Pty) Limited v Independent Advisory (Pty)
Limited ZAGPPHC 967 pertains to the interpretation of Section 17(1)(a)(i ) of the
Superior Courts Act, requiring a higher degree of probability of success on appeal.
This case is f requently referenced alongside Mont Chevaux to reinforce the stricter
standard for leave to appeal.
EVALUATION
[16] In my view, the first two grounds advanced by the applicant, namely the refusal
to admit a further affidavit and the upholding of the Rule 6(5)(d)(iii) point , do not, on
their own, demonstrate reasonable prospects that another court would reach a
their own, demonstrate reasonable prospects that another court would reach a
different conclusion. The refusal to admit a further affidavit involved the exercise of a
judicial discretion, and no basis has been shown to justify interference with that
discretion.
[17] The grounds of leave to appeal would not stand the traditional test for leave to
appeal because, on the issue of rejection of further affidavit, the court exercised its
discretion, judicially as it ought to. In relation to how the court dealt with rule 6(5)(d)(iii)
I am of the view that another court would not come to a different conclusion . Rule
6(5)(d)(iii) allows raising legal points without an answer, and the court correctly applied
this.
[18] The appellant argues that the impugned decision appears to impose or endorse
a legal requirement that when enforcing accession against the cedent, the cessionary
must have knowledge of and be able to prove the full underlying cause of action
between the cedent and the debtor, including facts and contractual matrix to which the
cessionary was not a party and may not have had access to. This submission is totally
incorrect because the court noted that the cessionary does not have to prove a
contract as he was not a party. The proposition by the applicant that the court found
that the applicant ought to plead and prove the entire underlying contractual
relationship between the cedent and the debtor is incorrect.
[19] In paragraph 20 of the judgment, the court deals with the onus of proof and the
court found that a cession does not dispense with the requirement to establish the
existence, nature, and enforceability of the underlying debt. The applicant, as
cessionary, bears the onus of proving that a valid and enforceable debt existed in
favour of the ce dent and that such debt falls within the scope of the cession relied
upon.
[20] Similar to this case, in Macla Commodities (Pty) Ltd the applicant conducts its
business as a seller of fuel and related products. It avers that it supplied fuel and
related products to Tradewith. Tradewith provided the applicant with a cession of book
related products to Tradewith. Tradewith provided the applicant with a cession of book
debts as security for the due fulfilment of, among other things, its payment obligations
towards the applicant, in respect of fuel sold and delivered. Tradewith was placed into
business rescue by an order of court on 4 May 2023. At the time of being plac ed into
business rescue, Tradewith was indebted to the applicant in the sum of R169 million.
The applicant avers that the first respondent is one of Tradewith’s debtors and that it
is indebted to Tradewith in the sum of R141 719.72 , which it is claiming from the first
respondent in terms of the cession of book debts.
[21] In both cases, Engen is claiming payment on the basis of the existence of the
book of debt by Oceanside to the cedent, Tradewith.
[22] The judgment of above does not bind me, in any event, the applicant was found
to have been amplified in the answering affidavit and the applicant explained why it
contended the amount claimed was due. Senyatsi J said the following ‘Having
considered the authority on the enforcement of the cession of book debts, this court is
of the view that there is not justifiable ground to depart from the Flotank decision. This
is so because contrary to the contention that the applicant in this ca se failed to make
out a case in its founding papers and attempted to make out a case in the replying
affidavit, the applicant amplified its case based on the answering affidavit and
explained why it contended that the amount was due to it by the first respondent.
[23] I reject the applicants’ proposition that the matter raises an important and
recurring question concerning the proper enforcement of cessions of book debts in
securitatem debiti. The extent to which a cessionary must establish the underlying
debt between the cadent and the debtor when enforcing the ceded claim has been
made clear and of the view that another court would not come to a different conclusion.
[24] In these circumstances, I am not satisfied that compelling reasons exist within
the meaning of section 17(1)(a)(ii) of the Superior Courts Act for the appeal to be
heard.
CONCLUSION
[25] The discretion to reject further affidavits was exercised properl y, even if
admitted, the applicant still failed to prove the debt.
[26] The judgment was sound and it does not undermine the enforceability of
cessions of book debts, and no merit exists for an appeal.
[27] The applicant’s five grounds lack merit and do not meet the threshold for
appeal.
candice@dm5.co.za
For the First Respondent
Counsel: Ernst Kromhout
Contacts: 082 898 0889
Attorney: Dr T.C Botha Attorneys
017 819 1881
011 789 2922
estate@tcbothalaw.co.za