12
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. 26 APRIL 2023 DATE SIGNATURE
CASE NUMBER: 31087/2019
In the matter between:
RENOVGANATHIE KUNIE APPLICANT
and
NEDBANK LIMITED RESPONDENT
In re:
NEDBANK LIMITED FIRST RESPONDENT
SB GARANTEEE COMPANY (RF) (PTY) LTD SECOND RESPONDENT
LEBOHLANO TRADING 50 (PTY) LTD THIRD RESPONDENT
___________________________________________________________________
JUDGMENT - LEAVE TO APPEAL
TLHAPI J
[1] This is an opposed application for leave to appeal premised on section 17 of
the Superior Courts Act 10 of 2013, (“the Act”). For completeness, section 17 (1) of
the Act is set out below:
“Section 17(1)
(1) Leave to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a) (i) the appeal would have reasonable prospect of success; or
(ii) there is some other compelling reasons why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) the decision sought on appeal does not fall withing the ambit of section
16(2); and
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt resolution of
the real issues between the parties.”
[2] It is contended that the court a quo erred on the following grounds:
1) erred in fact and in law in granting the order for the execution of the
immovable property prior to the respondent setting its version of fact,
alternatively allowing the respondent an opportunity to file an opposing
affidavit in order for the court to make a determination on the fact
common in cause or disputed;
2) erred in failing to consider a referral to mediation in terms of Rule 41A
presented at the hearing of the application;
3) erred in failing to apply the provision of Rule 46 and Rule 46A prior to
granting an order has breached the first respondent’s constitutional
rights as set out in Chapter Two of the Constitution of South Africa in
respect of:
3.1 Section 9(1) where everyone is equal before the law and has the
right to equal protection and benefit of the law;
3.2 Section 10 where everyone has the inherent dignity and the right
to have their dignity respected and protected;
3.3 Section 12(1)(a) where everyone has the right to freedom of
security of the person, which includes the right not to be deprived
of freed arbitrarily of without just cause; and
3.4 Section 25(1) no one may be deprived of property except in terms
of law of general application, and no law may permit arbitrary
deprivation of property;
4.1 erred in failing to apply the provisions of Rule 46A(5)(c);
4.2 erred in failing to allow the respondent to file an opposing
answering affidavit prior to granting an order as specifically
provided for in terms of rule 46A(6)(c); and
4.3 failed to consider the provisions of Rule 46A(8) in order to bring
the applicant’s unsubstantiated submission into line with the with
the provisions of Rule 46 and 46A, specifically Rule 46A(f);
5. erred in granting costs of the entire application of an attorney and
own client scale where no opposing affidavit had at the time been
file to oppose the application.
[3] The test applied previously to similar applications was whether there were
reasonable prospects that another court may come to a different conclusion,
Commissioner of Inland Revenue v Tuck1 . The threshold of reasonable prospects
has now been raised by the use and meaning attached to the words ‘only’ in 17(1)
and ‘would’ in section 17(1)(a)(i). Therefore, on the entire judgement there should be
some certainty that another court would come to a different conclusion from the
judgement the applicant seeks to appeal against. In Mont Chevaux Trust v Tina
Goosen and 18 Others2 :
“It is clear that the threshold for granting leave to appeal a judgment of a High Court
has been raised in the new Act. The former test whether leave to appeal should be
granted was a reasonable prospect that another court might come to a different
conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H.
The use of 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”
[4] In S v Smith3 a more stringent test is called for in that an applicant must
convince a court, on proper grounds that there are prospects of success which are
not remote, a mere possibility is not sufficient. Therefore, where the applicant has
satisfied either of the two identified requirements in the Act, leave to appeal should
be granted, Minister of Justice and Constitutional Development and Others v
Southern African Litigation Centre and Others4 . This standard was confirmed in
Notshokovu v S5 where it was stated:
“…….An appellant on the other hand faces a higher and stringent threshold
in terms of the Act compared to the provisions of the repealed Supreme Court
[5] in Ramakatsa and Others v African National Congress and Another6 Dlodlo
JA stated:
“Turning the focus to the relevant provisions of the Superior Courts Act[5] (the
SC Act), leave to appeal may only be granted where the judges concerned
are of the opinion that the appeal would have a reasonable prospect of
success or there are compelling reasons which exist why the appeal should
be heard such as the interests of justice [6]. The Court in Curatco[7]
concerning the provisions s 17(1)(a)(ii) of the SC Act pointed out that if the
court unpersuaded that there are prospects of success, it must still enquire
into whether there is a compelling reason to entertain the appeal, Compelling
reason would of course include an important question of law or a discreet
issue of public importance that will have the effect on future disputes.
However, this Court correctly added that ‘but hereto the merits remain vitally
important and are often decisive’.[8] I am mindful of decisions at high court
level debating whether the use of the word ‘would’ as opposed to ‘could’
possibly means that the threshold for granting the appeal has been raised. If a
reasonable prospect of success is established, leave to appeal should be
granted. Similarly, if there are some compelling reasons why the appeal
should be heard, leave to appeal should be granted. The test of reasonable
prospect of success postulates a dispassionate decision based on the facts
and the law, that a court of appeal should be heard, leave to appeal could
reasonably arrive at a conclusion different to that of the trial court. In 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 chance of succeeding. A
sound rational basis for the conclusion that there are prospects of success
must be shown to exist, [9]” (my underlining)
[6] In order to succeed in the appeal there must be prospects of success which
must be shown to exist and not be remote as stated in Ramakatsa supra.
[7] The application was against an order declaring immovable property
executable granted as a result of a monitory judgment in favour of the respondent
exceeding R16 million in a summary judgement against the applicant. An attempt to
execute against the movable assets resulted in the nulla bona return. It is common
cause:
1) that the debt did not emanate from a mortgage loan agreement and that
the applicant’s liability stems from the fact that she stood surety and she is
therefore not a judgement creditor.
2) that the property concerned is a residential property and the primary
residence of the applicant.
[8] The respondent contended that the immovable property being identified was
the only asset capable of being realized to settle the debt and that the
respondent had no satisfactory alternative manner of settling the debt owned
to it. The respondent relied on Deeds Registry search and not bank
statements and a municipal valuation to establish what the respondent was
owing in respect of the immovable property, as a result no reserve price was
set having regard to the debt.
[9] Rule 46A places responsibilities on both the applicant being the debtor and
the respondent as creditor to place certain information at the disposal of the court
before granting an order of executability. Having revisited the application my reasons
and having regard to the submissions by both counsel I am of the view there are
prospects in the application and that another court may arrive at a different
conclusion.
[8] In the result the following order is granted:
1. The application for leave to appeal is granted to the Full Court of this
Division with costs to be costs in the appeal.
_____________________
TLHAPI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD AND RESERVED ON: 13 SEPTEMBER 2022
DELIVERED ON: 26 APRIL 2023
11, 1989 (4) SA 888 (T)
2 2014 JDR 2325 (LCC) para [6]
3 2012 (1)SACR 567 (SCA) para[7]
4 2016 (3) SA 317 (SCA)
5 (157/15) [2016] ZASCA (7 September 2016) para [2]
6 (724/20190 [2021] ZASCA 31 (31 March 2021) para [10]
Cited documents 2
Judgment 1
1. | Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March 2021) | 74 citations |
Legislation 1
1. | Superior Courts Act, 2013 | 1698 citations |