ABSA Bank Limited v Phakamole Trading CC and Others (44997/2017) [2019] ZAGPPHC 341 (2 August 2019)

ABSA Bank Limited v Phakamole Trading CC and Others (44997/2017) [2019] ZAGPPHC 341 (2 August 2019)

The court held that the order joining the trust as defendants was procedural in nature and not appealable, as it did not dispose of the merits and merely facilitated the proper adjudication of the dispute by preventing multiplicity of actions. The trust retained all available defenses and the opportunity to participate in the proceedings. Even if the order were appealable, the trust failed to demonstrate that the court's discretion was not judicially exercised or that there was any prospect of success on appeal. The public policy argument regarding the suretyship clause was not properly raised in the pleadings and could not be considered at this stage.

Citation
[2019] ZAGPPHC 341
Parties
Applicant: ABSA Bank Limited; Respondent: Phakamole Trading CC; Respondent: Molebogeng Mbethe; Respondent: Phakama Mpumelelo Nkosi; Respondent: Advent Oil (Pty) Ltd; Respondent: Mohwelere Trading (Pty) Ltd; Respondent: Lazarus Modijane Mbethe NO; Respondent: Sylvia Rassie Mbethe NO; Respondent: Werner Fuls NO
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 August 2019
Case Number
44997/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Joinder Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
Kruger
Legal Topics
Joinder of Parties, Appealability of Orders, Suretyship, Judicial Discretion
Civil Procedure Joinder of Parties Appealability of Orders Suretyship Judicial Discretion

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Party arguments 2
Sign in to unlock

Parties

ABSA Bank Limited

Applicant

Phakamole Trading CC

Respondent

Molebogeng Mbethe

Respondent

Phakama Mpumelelo Nkosi

Respondent

Advent Oil (Pty) Ltd

Respondent

Mohwelere Trading (Pty) Ltd

Respondent

Lazarus Modijane Mbethe NO

Respondent

Sylvia Rassie Mbethe NO

Respondent

Werner Fuls NO

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Joinder Order

Legal Issues

  1. 1 Is the order joining the trust as defendants appealable?
  2. 2 Did the court exercise its discretion judicially in granting the joinder?
  3. 3 Is there any prospect of success on appeal regarding the joinder order?

Ratio Decidendi

The court held that the order joining the trust as defendants was procedural in nature and not appealable, as it did not dispose of the merits and merely facilitated the proper adjudication of the dispute by preventing multiplicity of actions. The trust retained all available defenses and the opportunity to participate in the proceedings. Even if the order were appealable, the trust failed to demonstrate that the court's discretion was not judicially exercised or that there was any prospect of success on appeal. The public policy argument regarding the suretyship clause was not properly raised in the pleadings and could not be considered at this stage.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.