Land And Agricultural Development Bank of South Africa v Marcus M Farming CC and Others (44773/2016) [2018] ZAGPPHC 66 (10 January 2018)
The court found that the defendants failed to demonstrate a bona fide defence to the summary judgment proceedings. The alleged conflicting decisions cited by the defendants were not, in fact, conflicting. No misdirection of fact or law was identified, and none of the established grounds for appeal against the costs...
Source-derived case information.
- Citation
- [2018] ZAGPPHC 66
- Parties
- Plaintiff: Land And Agricultural Development Bank of South Africa; Defendant: Marcus M Farming CC; Defendant: Kgabo Virginia Masenya; Defendant: Matooto Lydia Masenya; Defendant: Pauline Mphefo Ngoetsana; Defendant: Cornelius Lesiba Kenneth Ngoetsana; Defendant: Lesetja Solomon Masenya; Defendant: Tlou Julia Masenya
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 44773/2016
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
- Outcome
- Leave to appeal is refused with costs.
- Judges
- HF Jacobs
- Legal Topics
- Summary Judgment, Leave to Appeal, Costs Order, Bona Fide Defence
Source-derived case record
Summary, issues, holding and outcome
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Parties
Land And Agricultural Development Bank of South Africa
Plaintiff
Marcus M Farming CC
Defendant
Kgabo Virginia Masenya
Defendant
Matooto Lydia Masenya
Defendant
Pauline Mphefo Ngoetsana
Defendant
Cornelius Lesiba Kenneth Ngoetsana
Defendant
Lesetja Solomon Masenya
Defendant
Tlou Julia Masenya
Defendant
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
Legal Issues
- 1 Whether the defendants have shown a bona fide defence to resist summary judgment.
- 2 Whether there are novel or important questions of law warranting leave to appeal.
- 3 Whether conflicting decisions exist on the points of law raised by the defendants.
Ratio Decidendi
The court found that the defendants failed to demonstrate a bona fide defence to the summary judgment proceedings. The alleged conflicting decisions cited by the defendants were not, in fact, conflicting. No misdirection of fact or law was identified, and none of the established grounds for appeal against the costs order were convincingly raised. Consequently, the court held that there was no reasonable prospect of success on appeal and no compelling reason to grant leave to appeal.
Court Disposition
Leave to appeal is refused with costs.
Orders
- Leave to appeal is refused.
- The defendants are ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
39 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
(3) REVISED.
Case No: 44773/2016
10/1/2018
In the matter between:
LAND AND AGRICULTURAL DEVELOPMENT
BANK OF SOUTH AFRICA
Plaintiff
and
MARCUS M FARMING CC
1st Defendant
KGABO VIRGINIA MASENYA
2nd Defendant
MATOOTO LYDIA MASENYA
3rd Defendant
PAULINE MPHEFO NGOETSANA
4th Defendant
CORNELIUS LESIBA KENNETH NGOETSANA
5th Defendant
LESETJA SOLOMON MASENYA
6th Defendant
TLOU JULIA MASENYA
7th Defendant
JUDGMENT
HF JACOBS, AJ:
[1] This is an application for leave to appeal. In their notice of application for leave to appeal the seven defendants aver that I have erred in finding that the defendants did not show a bona fide defence to successfully resist the summary judgment proceedings and that the decision appealed against involves questions of law that are novel and of importance to the extent that it requires the attention of the Supreme Court of Appeal. In the alternative leave to appeal is sought to the Full Court of this Division.
[2] The defendants list the eight grounds of appeal they rely on in their notice. Those include the defences dealt with in the main judgment to which they added a seventh ground pertaining to the costs order made in the summary judgment proceedings and the eighth ground of appeal that there exist conflicting decisions in our Courts on points of law that shows that I should exercise my discretion in their favour by granting them leave to appeal.
[3] The principles that find application when considering an application for leave to appeal have been set out in Hunter.[1] To those principles should, in my view, be added, having regard to the fact that leave to appeal is sought against summary judgment, the principle set out in Majola.[2] During argument I have been referred to a number of judgments the defendants rely on to show that there exist conflicting decisions on the points of law they mention in their notice. The decisions are in my view not conflicting. I have considered the judgment and the costs order. I have not been shown any misdirection of fact or law and none of the well-established grounds of appeal against a costs order have been convincingly raised by the defendants.
[4] In my view the appeal has no reasonable prospect of success and there is no other compelling reason to grant the defendants leave to appeal.
[5] Leave to appeal is refused with costs.
HF JACOBS
ACTING JUDGE OF THE HIGH COURT
PRETORIA
10 JANUARY 2018
[1] Hunter v Financial Services Board 2017 JDR 0941 (GP).
[2] Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 (SCA) at [25].