Ballenden v Nature's Choice (Pty) Ltd (1935/2020) [2021] ZAGPJHC 637 (3 November 2021)
- Citation
- [2021] ZAGPJHC 637
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Molahlehi
- Case number
- 1935/2020
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Molahlehi
- Case number
- 1935/2020
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to demonstrate reasonable prospects of success on appeal. The loan agreement was found to be unlawful under the National Credit Act, but the applicant was nonetheless enriched by the payment made into his chosen bank account. The threshold for granting leave to appeal is high, requiring certainty that another court would reach a different conclusion. After considering the grounds of appeal and submissions, the court was not persuaded that the applicant met this threshold. Accordingly, leave to appeal was refused.
Court disposition
Leave to appeal is dismissed with costs.
Orders
- The applicant's leave to appeal is dismissed with costs.
02
Material facts
Parties
Matthew John Ballenden
Applicant Counsel: Adv. R GoslettNature's Choice (Pty) Ltd
Respondent Counsel: Adv D Van NiekerkAmounts and remedies
- Loan Amount Ordered to Be Paid: ZAR 800,000
03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
04
Questions and positions
Legal issues
- 01
Whether the applicant has reasonable prospects of success on appeal against the summary judgment.
- 02
Whether the loan agreement was unlawful under the National Credit Act.
- 03
Whether the applicant received and was enriched by the loan amount.
Party arguments
- Applicant
- The applicant contended that he has a bona fide defence to the claim, specifically that the loan amount was never paid to him, and therefore he should not be liable for repayment. He argued that there are reasonable prospects of success on appeal based on this defence.
- Respondent
- The respondent argued that it complied with the terms of the loan agreement by paying the loan amount into the bank account provided by the applicant. It maintained that the applicant was enriched and obliged to repay the amount, and that the agreement was unlawful for lack of compliance with the National Credit Act.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a) of the Superior Courts Act 10 of 2013
Leave to appeal may be granted only where there are reasonable prospects of success or compelling reasons exist.
- 02
Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others 2014 JDR 2325 (LCC)
The threshold for granting leave to appeal is higher under the new Act, requiring a measure of certainty that another court would differ from the judgment.
- 03
Acting National Director of Public Prosecution and Others v Democratic Alliance v Acting Director of Public Prosecution and Others 2016 ZAGPPHC 489
A court must consider whether the applicant has made a case for leave to appeal based on the grounds of appeal and submissions.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to demonstrate reasonable prospects of success on appeal. The loan agreement was found to be unlawful under the National Credit Act, but the applicant was nonetheless enriched by the payment made into his chosen bank account. The threshold for granting leave to appeal is high, requiring certainty that another court would reach a different conclusion. After considering the grounds of appeal and submissions, the court was not persuaded that the applicant met this threshold. Accordingly, leave to appeal was refused.
Obiter and limits
- The threshold for granting leave to appeal has been raised under the Superior Courts Act, requiring more than a mere possibility of a different outcome.
- The court emphasized the importance of compliance with the National Credit Act in loan agreements.
Court disposition
Leave to appeal is dismissed with costs.
- The applicant's leave to appeal is dismissed with costs.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL SIVISION, JOHANNESBURG
(1) REPORTABLE: Not
(2) OF INTEREST TO OTHER JUDGES: Not
(3) REVISED.
03 November 2021
Case number: 1935/2020
In the matter between:
MATTHEW
JOHN BALLENDEN
Applicant/Defendant
and
NATURE'S CHOICE (PTY) LTD
Respondent/Plaintiff
Transmitted by email to the parties’ legal representatives. The judgment is deemed to have been delivered on 03 November 2021
JUDGMENT
Molahlehi J
[1] The applicant (the defendant in the main application), Mr Ballenden seeks leave to appeal the judgment made by this court dated 17 September 2021. The judgment which is in favour of the respondent, Nature's Choice (Pty) Ltd (the applicant in the main application), was consequent summary judgment application in which Mr Ballenden was ordered to pay the Nature's Choice (Pty) Ltd (Nature's Choice) the sum of R800 000.00.
[2] The dispute between the parties arose from a loan agreement. The agreement, amongst others, made provision for the loan amount to be paid into the bank account chosen by Mr Ballenden. Nature's Choice contended in the main application that it had complied with the terms of the agreement by paying the loan amount into the bank account provided by Mr Ballenden. The cause of action was based on conditio ob turpen causam.
[3] Mr Ballenden opposed the summary judgment and contended that he has a bona fide defence to the claim in particular because the loan amount was never paid to him.
[4] The court found that the agreement was unlawful for lack of compliance with the provisions of the National Credit Act 34 of 2005.
[5] The main issue in the summary judgment application was whether the loan amount was received by Mr Ballenden or some other entity. The court, having, amongst others, considered the provisions of paragraph 10.2 of the plea, found that Mr Ballenden did receive the amount in question. For this reason and others that appear in the judgment, the court found that Mr Ballenden was enriched and thus obliged to pay the amount in question.
[6] The test to apply when considering whether leave to appeal should be granted is in section 17(1) (a) of the Superior Courts Act 10 of 2013. Section 17(1) provides that leave to appeal may be granted in the circumstances where there are reasonable prospects of success on appeal or there is a compelling reason to grant leave to appeal.
[7] It is trite that the threshold of reasonable prospects of success is much high than it previously was. This was confirmed in Acting National Director of Public Prosecution and Others v Democratic Allience v Acting Director of Public Prosecution and Others,[1] where the Full Bench in quoting with approval what was said in Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others,[2] said:
“It is clear that the threshold for granting leave to appeal against 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."
[8] In applying the above principle to the facts in this matter, I took into account the grounds of appeal, the judgement of this court and the submissions made by the parties. I am not persuaded that Mr Ballenden has made a case for leave to appeal. Accordingly, his application for leave to appeal stands to fail.
Order
[9] In the circumstances, the applicant's leave to appeal is dismissed with costs.
E
MOLAHLEHI J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA, GAUTENG LOCAL DIVISION,
JOHANNESBURG
Representatives:
For the applicant: Adv. R Goslett
Instructed by: Dewey Hertzberg Levy Inc.
For the respondent: Adv D Van Niekerk
Instructed by: Cliffe Dekker Hofmeyer Inc
Hearing date: 6 October 2021
Delivered: 03 November 2021
[1] 2016 ZAGPPHC 489.
[2] 2014 JDR 2325 (LCC).
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