HBZ Bank Limited v Mukudam's General Enterprises and Others (32628/2019) [2020] ZAGPPHC 292 (1 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

CASE NO: 32628/2019

IN THE MATTER BETWEEN

HBZ BANK LIMITED

Plaintiff/Respondent

AND

MUKADAM'S GENERAL ENTERPRISESAND TWO OTHERS

Defendants/Applicants

JUDGMENT IN RESPECT OF APPLICATION FOR LEAVE TO APPEAL

WANLESS, AJ

[1] In this matter the three Defendants seek leave to appeal against the judgment granted by this court on the 3rd of February 2020 in terms of which this court granted summary judgment in favour of the Plaintiff against al l three Defendants , jointly and severally , the one paying the either to be absolved.

[2] The facts of this matter and the principles of law applicable thereto, are set out in the judgment of this court and will not be repeated herein. When the Defendants filed their NOTICE OF INTENTION TO MAKE AN APPLICATION FOR LEAVE TO APPEAL IN TERMS OF RULE 49(1)(b), dated 11 February 2020, it was broadly stated that "the grounds upon which the Defendants'(sic) shall rely on for the request for leave to appeal are that the defences advanced were wrongly rejected by the learned judge". This court had delivered judgment in this matter ex tempore on the 3rd of February 2020. Hence, it was also stated in the said notice that "The Defendants' (sic) will amplify and articulate the grounds of appeal once the Defendants' (sic) have received the written transcript of the judgment giving the reasons why the learned judge granted the summary judgment". The transcript of this court' s ex tempore judgment was received on the 26th of February 2020; revised by this court by the 3rd of March 2020 and sent to all of the parties the same day (the 3rd of March 2020).The application for leave to appeal was heard on the 26th of March 2020.

[3] Regrettably, despite the indication that the Defendants would " amplify and articulate the grounds of appeal" (as set out above) they failed to do so. In the premises, when the application for leave to appeal was heard on the 26th of March 2020 this court was left to decide that application on the broad grounds that this court erred by rejecting the defences

advanced by the Defendants to the Plaintiffs claim for summary judgment.

[4] In this regard, it was submitted, on behalf of the Plaintiff, that the application for leave to appeal is fatally defective in that, inter alia, the notice for leave to appeal does not comply with the provisions of Rule 49(1)(b) which are peremptory. In support thereof, Plaintiff's

Counsel referred this court to the decision of Songono v Minister of Law and Order 1996 (4) SA 384 (E) where Leach J (as he then was) held, inter alia, that the peremptory provisions of the aforesaid Rule which apply when leave to appeal is not requested at the time of the judgment, require that in the notice of appeal the grounds upon which the appeal is founded are to be clearly and succinctly set out, in clear and unambiguous terms , to enable the Court and the Respondent to be fully and properly informed of the case which the Applicant seeks to make out and which the Respondent is to meet in the opposing application.

[5] As is clear from that as set out earlier in this judgment the Defendants' notice does not set out, at all, the grounds upon which

this application for leave to appeal is based. In the premises, aligning itself with the decision of Songono v Minister of Law and Order (supra) this court holds that the application for leave to appeal is fatally defective and should be dismissed with costs.

[6] Even if this court is incorrect in respect of the aforegoing the application for leave to appeal cannot succeed. It is trite that in terms of subsection 17(1)(a)(i) of the Superior Courts Act, No. 10 of 2013 ("the Act") leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success. In this respect , as pointed out by Counsel for the Plaintiff, the Defendants, whilst raising a number of so-called defences in their Opposing Affidavit to Summary Judgment (in terms of Rule 32 prior to the latest amendments) , failed to set out any material facts whatsoever to raise any triable issues. In the absence thereof, there are no facts upon which this court (or indeed a court of appeal) could, in the exercise of its discretion , refuse to grant summary judgment in favour of the Plaintiff. In the to appeal cannot be granted in terms of subsection 17(1)(a)(i) of the Act. It follows that the application for leave must be dismissed with costs.

[7] The court grants the following order:

1. The application for leave to appeal (it not being stated by the Defendants in their Notice for Leave to Appeal as to whether leave was sought to appeal to the full court of this Division or the Supreme Court of Appeal) is dismissed.

2. The Defendants are to pay the· cost's ·of this application, jointly and severally, the one paying the other to get absolved.

BC WANLESS

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

HEARD ON:

26 March 2020

FOR THE PLAINTIFF/ APPLICANT: Adv K D lles

INSTRUCTED BY:

Dokrat Incorporated

THE RESPONDENT:

Adv MP Van der Merwe SC

INSTRUCTED BY:

Jaffer Inc Attorneys

DATE OF JUDGMENT :

1 June 2020·