China Construction Bank Corporation Johannesburg Branch v Gobel Agentskappe CC and Others (52295/2015) [2017] ZAGPPHC 1003 (2 October 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 52295/2015

2/10/2017

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED

In the matter between:

CHINA CONSTRUCTION BANK CORPORATION Plaintiff

JOHANNESBURG BRANCH

(Respondent in the application for leave to appeal)

and

GOBEL AGENTSKAPPE CC 1st Defendant

PETER HERMANN GOBEL 2nd Defendant

AUTOHAUS GOBEL NORTHCLIFF (PTY) LTD 3rd Defendant

ERF 7178 HATFIELD CC 4th Defendant

GENERAL HELPLINE CC 5th Defendant

QUICK LEAP INVESTMENTS 328 (PTY) LTD 6th Defendant

RED CORAL INVESTMENTS (PTY) LTD 7th Defendant

SUNSET BAY TRADING 327 (PTY) LTD 8th Defendant

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

AC BASSON, J

[1] This is an application for leave to appeal against my judgment and order (dated 20 April 2017) dismissing an application for postponement brought on behalf of the 1st, 2nd and 5th defendants (the applicants in the application for leave to appeal).

[2] The defendants submitted that the primary appeal in this matter is against the judgment and order of Ledwaba DJP and further submitted that the two applications for leave to appeal should be heard simultaneously. I have indicated

to counsel on behalf of the defendants that the only matter that serves before me is the application for leave to appeal against my judgment and order refusing a postponement and that the matter will proceed on this basis only.

[3] Subsequent to my order and on 21 April 2017 (the next day), Deputy Judge President Ledwaba granted default judgment against Mr Gobel (the sole director of the 1st and 5th defendants). Subsequent to these two orders and on 18 May 2017 the 1st and 5th defendants were placed under provisional liquidation. A final liquidation order was granted on 29 June 2017.

[4] As a result of these developments, it was submitted on behalf of the plaintiff, that Mr Gobel no longer has the necessary locus standi to prosecute the application for leave to appeal on behalf of the 1st and 5th defendants. In this regard the Court was referred to section 368(4)(a) of the Companies Act[1] which provides that a liquidator, once appointed, has the necessary power to bring or defend any action or other legal precedents in the name and on behalf of the company. The attorney acting on behalf of the liquidators (who was in court) confirmed that Mr Gobel was not acting on behalf of the 1st and 5th defendants.

[5] In the circumstances, Mr Gobel has no locus standi to act on behalf of the 1st and 5th defendants: accordingly the application for leave to appeal brought ostensibly by the 1st and 5th defendants are dismissed with costs such to be paid by Mr Gobel.

[6] I will now briefly turn to the application for leave to appeal brought by the 2nd defendant (Mr Gobel). His application for leave to appeal should be viewed against the background of the fact that Mr. Gobel - the only remaining applicant in the application for leave to appear before this court - was sued as a surety. In essence, the argument on behalf of Mr Gobel is that this Court failed to exercise its judicial discretion as to whether or not to grant a postponement.

[7] Before I briefly tum to a consideration of this issue, it needs to be considered whether or not the appeal is against "any decision of a Division as a court of first instance” as provided for by section 16(1)(a) of the Superior Courts Act.[2] In this regard the Court had regard to the well-known decision in Zweni v Minister of Law and Order [3] where the following was held in respect of what constitutes a decision as contemplated in section 16(1) of the Superior Courts Act:

"6. Whether so-called 'simple interlocutory orders', i.e. 'all orders pronounced by the Court upon matters incidental to the main dispute preparatory to or during the progress of the litigation' and not having a final or definitive effect, are either 'judgments or orders' or simply 'rulings' has not yet been decided by this Court (the Van Streepen & Germs (Ply) Ltd case supra at 5831-5840).

7. In determining the nature and effect of a judicial pronouncement, ‘not merely the form of the order must be considered but also, and predominantly, its effect' (South African Motor Industry Employers' Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at 96H).

8. A 'judgment or order' is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings

(Van Streepen & Germs (Pty) Ltd case supra at 5861-5878; Marsay v Dilley [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief (Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another [1991] ZASCA 163; 1992 (4) SA 202 (A) at 2140-G)."

[8] It is, however, accepted that in certain circumstances a decision that is not final in effect may be susceptible to an application for leave to appeal. I am not persuaded that the order of this Court dismissing the application for

postponement had the effect of disposing of any portion of the relief that was sought against the defendants. The order refusing

postponement is accordingly, in my view, not appealable and the application for leave to appeal by Mr. Gobel in relation to the

postponement order therefore falls to be dismissed on this ground.

[9] In so far as it may be argued that the effect of the postponement was to dispose of at least a substantial portion of the relief sought and therefore the order of this Court should qualify to be appealable, I have briefly considered the grounds of appeal against my order and more in particular against the principles set out in the well-known decision of Myburgh Transport v Botha tla S A Truck Bodies.[4] The Court in this case pointed out that an appeal court is not entitled to set aside the decision of a trial court granting or refusing a postponement in the exercise of its discretion merely on the ground that, had the members of the court of appeal been sitting as the trial court, these members would have exercised their discretion differently. In appropriate cases, however, an appeal court may set aside the decision of the trial court, where it appears that the trial court had not exercised its discretion judicially or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. The Court also emphasised the point that an application for a postponement must be made timeously and as soon as the circumstances which might justify such an application become known to the applicant.

[10] On behalf of Mr. Goble, it was submitted that the defendants have properly motivated a postponement and that the refusal of the postponement effectively deprived him and his companies of the opportunity to introduce further defenses and counterclaims as well as to refer the conduct of Rand Asia Trade Finance (Pty) Ltd to the Financial Services Board for investigation. (I have already dealt with the locus standi of Mr. Goble to act on behalf of his companies.)

[11] I have reconsidered my decision. I am not persuaded that there are reasonable prospects of success on appeal in respect of the conclusions reached by this Court. When the application for a postponement was launched, it was done a day before

the commencement of the trial and under circumstances where the trial date had been known to the defendants for some ten months. The issues complained of by the defendants had been ventilated between the parties for at least two years prior to the trial date and the application for postponement was brought without any proper explanation, whatsoever, as to why the application had not been launched timeously. It was also not in dispute that Mr Gobel (and the remaining defendants) was unable to effect payment of the capital amount due to the plaintiff let alone the interest. Furthermore, as at the date of the refusal of the application for postponement, the plaintiffs claim was in the region of R86 million. I have also referred in my judgment to the fact that the defendants had failed to effect payment of six prior costs orders made against them and that they had no means of doing so.

[12] In the premises, Mr Gobel's application for leave to appeal is likewise dismissed with costs.

Order

1. The application for leave to appeal brought by the 1st and 5th defendants are dismissed with costs.

2. The application for leave to appeal brought by Mr Gobel is dismissed with costs.

3. Mr Gobel (the 2nd defendant) is ordered to pay the costs of both applications for leave to appeal.

AC BASSON

JUDGE OF THE HIGH COURT

Appearances:

For the plaintiff:

Adv AJ Eyles SC

Instructed by:

Bowman Gilfillan Inc

For the first, second and fifth defendants: Adv Campbell

(Applicants in the application for leave to appeal)

Instructed by:

Clyde & Company (Klagsbrun

Edelstein Bosman De Vries Inc

[1] Act 61 of 1973 (the old Companies Act).

[2] Act 10 of 2013.

[3] 1993 (1) SA 523 (A) at 5321 -5338.

[4] 1991 (3) SA 310 (NmS).