Mahomed v Standard Bank of South Africa Ltd and Another (69492/2017) [2020] ZAGPPHC 111 (20 March 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

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: 69492/2017

20/3/2020

In the matter between:

SIKANDER MAHOMED

APPLICANT

(Id. No.: [….])

and

THE STANDARD BANK OF SOUTH AFRICA LTD 1ST RESPONDENT

(Reg. No.: 1962/000738/06)

SHERIFF PRETORIA SOUTH AFRICA

2ND RESPONDENT

JUDGMENT

G JACOBS (AJ)

[1] In this Application for Leave to Appeal, the Applicant, Mr. Sikander Mahomed seeks leave to appeal the Order of this Court dated 20 June 2019, on the grounds set out in his Application for Leave to Appeal, dated 11 July 2019.

[2] In the Index: Application for Leave to Appeal, there was only a filing notice for the Application for Leave to Appeal, that was filed on 17 October 2019. There was no Condonation Application on the Court file. At the outset of the argument, this aspect was raised with the legal representatives and the Applicant’s legal representative handed me another filing notice that was duly stamped by the Registrar, within the period in which such an Application for Leave to Appeal had to be issued, served and filed. The representative on behalf of Standard Bank also had the opportunity to inspect the last-mentioned filing notice and he had no objection thereto. Therefore, there was no Condonation Application necessary and the Application for Leave to Appeal could proceed.

[3] Applications for Leave to Appeal is governed in terms of Section 17 of the Superior Courts Act (Act 10 of 2013), relevant for purposes of this Application, the following:

“17. Leave to Appeal

(1) Leave to appeal may only be given where the Judge or Judges

concerned are of the opinion that –

(a)

(i) The appeal would have a reasonable prospect of success; or

(ii) There is some other compelling reason why the appeal

should be heard, including conflicting judgments on the

matter under consideration;

(b) …

(c) …” [not relevant]

[4] The words “may only be given” raises the bar when it is compared to the wording of the now repeated Supreme Court Act (Act 59 of 1959).

[5] The Applicant’s first ground of appeal, set out under the heading “Ad Condonation”, in paragraphs 4 to 8 of the Application for Leave to Appeal, is in essence that the Court erred to find that the Applicant did not set out a bona fide defence, in circumstances where the Court granted condonation for the late filing of the Application for Rescission.

[6] The argument went along the lines that the Court (in its consideration of condonation) had to consider whether there are prospects of success. The argument went further, and it was so submitted that because the Court found, in considering condonation, that there are prospects of success, therefore, the Court must also find that there are reasonable prospects of success on the merits and that there is a triable issue.

[7] Condonation for the late filing of applications have been dealt with in Ferris v First Rand Bank 2014 (3) SA 39 CC at paragraphs 10 to 12. In paragraph 10, the following is said:

“In Bert Van Zyl [2010 (2) SA 181 CC], in paragraph 14, this Court held that lateness is not the only consideration in determining whether condonation may be granted. It held further that the test for condonation is whether it is in the interests of justice to grant it. As the interest-of-justice test is a requirement for condonation and granting leave to appeal, there is an overlap between these enquiries. For both enquiries, an Applicant’s prospects of success and the importance of the issue to be determined are relevant factors.” [my edit]

[8] The Court in Ferris supra, paragraph 31 asks the following question:

“Given that Mr. and Mrs. Ferris do not have reasonable prospects of success, is it

nevertheless in the interest of justice for us to grant leave to appeal?”

The Court then answers:

“I do not think so.”

[9] Based on the aforesaid, this Court must inter alia determine, when granting condonation whether there are reasonable prospects of success. However, it is not the only aspect to consider.

[10] The reasoning on behalf of the Applicant arguing that if the Court grants condonation, then there is a reasonable prospect of success, is wrong. When granting condonation for the hearing of an application, the Court has to determine whether it is in the interest of justice and that enquiry goes further than merely the prospects of success.

[11] The remainder of the Applicant’s grounds are set out in the Notice of Leave to Appeal, more specifically: (I use the wording of the headings of Applicant’s Notice)

11.1 “No rational, reasonable and proper affordability assessment”;

11.2 “Distinct assessment criteria for the Applicant”;

11.3 “Credit as a whole”;

11.4 “Defence of non-disclosure, in terms of Section 81(4) of the National

Credit Act”;

was fully canvased with the legal representatives of the Applicant and the First

Respondent.

[12] Taking into account that the Application was a Rescission Application, of a Default Judgment and was brought in terms of Rule 32(1)(b) of the Uniform Rules of Court, alternatively the Common Law, it is trite that the Applicant must show good cause, which consists of facts which established that he was not in wilful default and having a bona fide defence. The Applicant has the onus to establish that. In this regard, see ABSA Bank v De Beer and 2 Others 2016 (3) SA 432 GP at paragraph 28.

[13] Not only has the Applicant the onus but if he or she relies on reckless credit, has to comply with the dicta set out in SA Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases 2011 (SA) 310 (GSJ) at paragraph 56.

[14] Applying these principles and considering the case of the Applicant, I am of the view that the appeal does not have a reasonable prospect of success. One merely has to read the Founding Affidavit of the Applicant and compare it with the dicta of the SA Taxi Securitisation case supra to see that the case of the Applicant falls far short.

[15] The Applicant, in its Application for Leave to Appeal and in argument, not only relied on Section 17(1)(a)(i) of the Superior Courts Act but also relied on Section 17(1)(a)(ii) and submitted that some other compelling reason exists why the appeal should be heard.

[16] Compelling reasons are discussed in Erasmus Superior Court Practice [Service 9, 2019] at A2-55, where the following is said:

“This paragraph does not contain an exhaustive list of criteria and it is submitted that each application for leave to appeal must be decided on its own facts. Obviously, the applicant for leave to appeal must demonstrate that there is a compelling reason why the appeal should be heard.”

[17] The learned authors on A2-56 goes further and says:

“It is submitted that the substantial importance of a case to the appellant or to both the appellant and the respondent constitutes a compelling reason why an appeal should be heard. Other compelling reasons include the fact that the decision sought to be appealed against involves an important question of law and that the administration of justice, either generally or in the particular case concerned, requires the appeal to be heard…”

[18] I have considered the facts on the papers, as well as the argument set out in the Applicant’s Heads of Argument together with verbal submissions made to me during argument and I cannot find that there is a compelling reason, as provided for in Section 17(1)(a)(ii) of the Superior Courts Act, to grant leave to appeal.

[19] In the premises, the Application for Leave to Appeal cannot succeed and should be dismissed.

[20] That leaves only the aspect of costs. In terms of the agreements between the parties, Standard Bank, as the Respondent, if it is successful is entitled to its costs on an attorney and client scale. This Court’s order dated 20 June 2019 was also granted on that scale and as a result thereof.

[21] I can see no reason to deviate from that and there was also no argument or submissions that urged me to deviate from that. In the premises, costs on an attorney and client scale must follow.

[22] Therefore, I grant the following order:

22.1 The Application for Leave to Appeal is dismissed.

22.2 The Applicant is to pay the Respondent’s costs of the Application for

Leave to Appeal on the scale as between Attorney and client.

G JACOBS

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

For the applicant: Mr Pillay

From Pillay Thesigan Inc

PRETORIA

For the respondent: Adv Reyneke M

Instructed by Ramsay Webber Attorneys

JOHANNESBURG