Lyndoch 432 CC v Firstrand Rand Bank Limited and Others In re: Firstrand Rand Bank Limited v Dr LL Wolmarans NO and Others (404/2019) [2020] ZANCHC 58 (13 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No: 404/2019

Date available: 13/08/2020

In the matter between:

LYNDOCH 432 CC

Applicant

and

FIRSTRAND RAND BANK LIMITED

First Respondent

DR LL WOLMARANS N.O

Second Respondent

THE COMPANIES AND INTELLECTUAL

PROPERTY COMMISSION

Third Respondent

ALL OTHER AFFECTED PERSONS

Fourth & Further Respondents

In re:

FIRSTRAND RAND BANK LIMITED

Applicant

And

DR LL WOLMARANS N.O

First Respondent

LYNDOCH 432 CC

Second Respondent

PROPERTY COMMISSION

Third Respondent

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

MAMOSEBOJ

[1] This is an application by Lyndoch 432 CC for leave to appeal to the Full Bench of the Northern Cape Division against the whole judgment and order handed down on 26 March 2020 in terms of which this court refused to admit its supplementary affidavit and to grant it a postponement and granted Firstrand Bank Ltd an order for its provisional liquidation with a return date of 08 May 2020 extended to 04 September 2020. The application is opposed.

[2] In a nutshell, the applicant submitted the following as a basis for this application:

"applicant submits with respect that there exists a reasonable prospect of success for an appeal to succeed against the final refusal of a postponement and the final refusal to allow the supplementary affidavit contained in the application for postponement and that another court will come to a different conclusion, i.e that a postponement for a period of 2 months should have been granted and the continuance of the application for liquidation should have been suspended for such period, as provided for in accordance with the test laid down ins 17(1)(a) of the Superior Courts Act, 10 of 2013."

[3] The threshold for determining whether to grant leave to appeal on the basis that the appeal would have a reasonable prospect of success is higher and stringent, see Notshokovu v S[1]

[4] In MEG for Health, Eastern Cape v Mkhitha and Another[2] the Supreme Court of Appeal explained the higher and stringent threshold on an application for leave to appeal based on s 17(1)(a) as follows:

"Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that 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; or there is some other compelling reason why it should be heard. An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal."

[5] The Main Judgment has succinctly and adequately dealt with the application for a postponement of the main application. The reasons

for refusal of the postponement appear in paras 5 to 11 and require no repetition. The Constitutional Court has laid down the principle

regarding postponements in Lekolwane and Another v Minister of Justice and Constitutional Development[3]. The matter was set down for hearing and what the applicant sought was an indulgence not a right. I do not agree with the submission that I should have found that the facts before me were sufficient to satisfy the element of good cause. Weighing the conflicting interests of the parties and in the exercise of my discretion, it was, in my view, not in the interests of justice to grant the postponement.

[6] The admission of an additional (supplementary} affidavit by Lyndoch is dealt with at paras 12 to 18 of the main judgment and requires no repetition. The principle enunciated by the Supreme Court of Appeal in Hano Trading CC v JR 209 Investments (Pty) Ltd[4] is relevant. The applicant made an option to pursue motion proceedings. Rule 6 of the Uniform Rules of Court, which sets out the sequence and timing for the filing of affidavits is applicable. Rule 6(5}(e}

provides that further affidavits may only be allowed at the discretion of the court. There must be good reason to permit an additional affidavit. On a conspectus of the evidence before me, I was not persuaded to allow a further affidavit.

[7] The last issue for consideration is the provisional liquidation application which is dealt with in the main judgment at paras 19 to 24. Reference was made to the pronouncements by the Supreme Court of Appeal in Naidoo v Absa Bank[5] that sequestration proceedings are instituted by a creditor against a debtor not for purposes of claiming something from the latter but for purposes of setting the machinery of the law in motion.

[8] I have also considered the issue of prejudice to Firstrand Bank Ltd and outlined all the legal hurdles that it had to overcome to date of hearing. The bank had instituted action in this court under case number 1453/2016 on 07 July 2016 almost four years ago; this was followed by the parties, including Lyndoch, signing Consent to Judgment but failed to settle the outstanding balance as agreed to on 30 June 2017; an auction was arranged for 25 October 2017 and it was stymied by the applicant voluntarily placing itself under business rescue and supervision.

[9] No rescue of the business occurred. Instead, the business rescue practitioner received lack of cooperation from those he was meant to assist. I have weighed all these against the potential deal with Hyperion which had submitted a bid under the Renewable Independent Power Producer Procurement Programme. I find that the current submissions for leave with regards to the aspect of provisional liquidation do not persuade me otherwise.

[10] The applicant can still challenge the confirmation of the provisional liquidation on 04 September 2020 which essentially means that this decision is not final in effect. See Zweni v Minister of Law and Order of the Republic of South Africa[6]

[11] After careful consideration of the grounds of appeal and the argument by the parties I find that the applicant has not met the threshold envisaged in s 17(1)(a)(i) of the Act and its application stands to fail. There is no reason why costs should not follow the results.

[12] In the result_, the following order is made:

The application for leave to appeal is dismissed with costs.

MC MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION

DATE OF HEARING:

The application for leave to appeal was

determined on papers. The heads of argument on behalf of the applicants were filed on 28 May 2020 and the First Respondent 05 June 2020.

DATE OF JUDGMENT:13 AUGUST 2020

For the Applicant: Adv J Roux SC

Instructed by Michca J Van Vuuren Attorneys

c/o Roux Wilgemoed Du Plooy Attorneys

For the 1st Respondent: Adv S Tsangarakis

Instructed by: Symington & De Kok Attorneys

c/o Mervyn Joel Smith Attorneys

[1] [2016] ZASCA 112 (7September 2016) at para 2

[2] [2016] ZASCA 176 (25 November 2016) at para 16-17

[3] 2000 (4) SA 1110 (CC) at 112 para 17

[4] 2013 (1) SA 161 (SCA) at 164 para 10 to 14

[5] 2010 (4) SA 597 (SCA) at para 4

[6] (310/91) [1992] ZASCA 197 [1993] 1 ALL SA 365 (A) (20 November 1992)