Chowdhury v Naude and Another (3412/2018) [2019] ZAECGHC 52 (2 April 2019)
- Citation
- [2019] ZAECGHC 52
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- VM Nqumse
- Case number
- 3412/2018
More details
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- VM Nqumse
- Case number
- 3412/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, although it had previously ruled the Plascon-Evans rule was not applicable, there were discrepancies in the affidavits and issues regarding the respondent's good faith and reliability. The applicant's arguments raised points that another court might view differently, particularly regarding the application of the Plascon-Evans rule and the requirements for an anti-dissipatory order. Consequently, the court determined that leave to appeal should be granted to allow a higher court to reconsider these issues.
Court disposition
Leave to appeal granted to the Full Bench of the Eastern Cape Division.
Orders
- Leave to appeal against the ruling is granted to the Full Bench of this Division.
- Costs to be costs in the appeal.
02
Material facts
Parties
Salim Chowdhury
Applicant Counsel: Adv Smuts SC with Adv MillerDebbie Naude
Respondent Counsel: Adv Van der MerweFirstrand Bank Limited t/a First National Bank (FNB)
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment Delivered on 22 January 2019
04
Questions and positions
Legal issues
- 01
Whether the Plascon-Evans rule was applicable to the main application.
- 02
Whether the respondent acted in utmost good faith and whether his evidence was reliable.
- 03
Whether the requirements for final or interim relief were met.
- 04
Whether the respondent established the requirements for an anti-dissipatory order.
Party arguments
- Applicant
- The applicant contended that discrepancies in the respondent's affidavits undermined the respondent's good faith and reliability, warranting the application of the Plascon-Evans rule. The applicant further argued that the structure of the application sought final relief, but the respondent failed to meet the requirements for such relief, as well as those for interim relief.
- Respondent
- The respondent maintained that the Plascon-Evans rule was not applicable to issues that could be resolved on the papers, and unresolved issues were left for trial. The respondent asserted that the relief sought was interim pending subsequent action, and that no genuine and bona fide defence existed that could not be resolved on the papers.
05
Court’s reasoning
Legal principles
- 01
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
The Plascon-Evans rule governs the approach to factual disputes in motion proceedings, requiring the court to accept the respondent's version unless it is so far-fetched or untenable that it can be rejected on the papers.
- 02
Setlogelo v Setlogelo 1914 AD 221
Requirements for interim relief include a prima facie right, a well-grounded apprehension of irreparable harm, the balance of convenience, and the absence of another satisfactory remedy.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, although it had previously ruled the Plascon-Evans rule was not applicable, there were discrepancies in the affidavits and issues regarding the respondent's good faith and reliability. The applicant's arguments raised points that another court might view differently, particularly regarding the application of the Plascon-Evans rule and the requirements for an anti-dissipatory order. Consequently, the court determined that leave to appeal should be granted to allow a higher court to reconsider these issues.
Obiter and limits
- The court noted that some issues could be resolved on the papers, while others were more appropriately left for determination by the trial court.
- The relief sought by the respondent was interim in nature, pending subsequent action, and did not require resolution of all factual disputes at this stage.
Court disposition
Leave to appeal granted to the Full Bench of the Eastern Cape Division.
- Leave to appeal against the ruling is granted to the Full Bench of this Division.
- Costs to be costs in the appeal.
Source and reliance status
Eastern Cape High Court, Grahamstown
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.
Eastern Cape High Court, Grahamstown
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION (GRAHAMSTOWN)
Case No: 3412/2018
In the matter between:
SALIM CHOWDHURY Applicant
and
DEBBIE
NAUDE First Respondent
FIRSTRAND BANK LIMITED t/a
FIRST NATIONAL BANK (FNB)
Second Respondent
JUDGMENT
NQUMSE AJ:
[1] This is an application for leave to appeal against the judgment I made on 22 January 2019. The application is opposed. The respondent opposed the application and argued that the court was correct on it’s ruling that the Plascon-Evans rule was not applicable as was argued by the applicant in the main application.
[2] The applicant argued that in view of the discrepancies that are in the founding affidavit and the replying affidavits of the respondent the court ought to have found that the respondent has not acted in utmost good faith and his evidence lacks reliability. In light thereof the Plascon-Evans rule ought to have found application.
[3] He further argued that the structure of the application was presented as seeking a final relief whereas the respondent failed to establish the requirements thereof and he has also failed the requirements to meet for an interim relief.
[4] The respondent argued that the Plascon-Evans rule was not applicable on the issues that could be resolved on the papers and those issues that could not be resolved were left for the trial court. Respondent further argued that the relief it sought was for an interim relief pending the subsequent action. In the interim relief sought there was no genuine and bona fide defence that could not to be resolved on the papers.
[5] On the issue whether the Plascon-Evans rule ought to have found application and whether the respondent has met or not the requirements of an anti-disspatory order, it may be that another court may come to a different conclusion than to which this court arrived at. I will therefore grant leave to appeal on the points raised.
[6] In the result I make the following order:
1. Application for leave to appeal against my ruling is granted to the Full Bench of this Division.
1. Costs to be costs in the appeal.
VM NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Adv Smuts SC appearing with Adv Miller
For the Respondent: Adv Van der Merwe
Date heard:
2 April 2019
Date delivered:
30 April 2019
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