MAN Financial Services SA (Pty) Ltd v Afri-Link Logistics CC and Others (1273/2021) [2023] ZAMPMHC 42 (13 December 2023)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO: 1273/2021

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

13/12/23

In the matter between: MAN FINANCIAL SERVICES S.A. (PTY) LTD t/a MAN FINANCIAL SERVICES (Registration Number: 1997/011686/07) PLAINTIFF And AFRI-LINK LOGISTICS CC FIRST DEFENDANT LAURENCE STEPHEN BIRD SECOND DEFENDANT STANLEY NKOMO THIRD DEFENDANT KUSILE MINING (PTY) LTD FOURTH DEFENDANT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

Langa J:

Introduction and background

[1] This is an application for leave to appeal the judgment handed down by this court on 14 July 2022 against the Second and Third Defendants in respect of 22 monetary claims instituted by the Plaintiff who is the respondent in this application. Only the Second Defendant seek leave to appeal. For convenience, the parties will be referred to as they are cited in the main action.

[2] Although the application was out of time and opposed, when the matter was heard the Plaintiff indicated that the condonation application by the Second Defendant is no longer opposed and the condonation was therefore granted.

Applicable legal principles

[3] It is trite that applications for leave to appeal are now governed by the provisions of Section 17(1) of the Superior Courts Act 10 of 2013 which provides as follows:

“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; (my underlining for emphasis).

(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[4] The test in such applications has changed substantially from the test ordained in terms of the repealed Supreme Court Act 59 of 1959. The current standard is captured succinctly in the case of The Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others LCC14R/2014, (3 November 2014) at para 6 in which the Court stated that

“the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act and that in terms of the former test the question was whether or not there was a reasonable prospect that another court might come to a different conclusion, See Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H. The use of the word “would’ in the new statute is indicative of a measure of certainty that another will differ from the court whose judgment is sought to be appealed against.”

[5] This position has since been confirmed in other Divisions of the High Court and it is therefore clear that the current section is now more burdensome than its predecessor. Smith J in the Valley of the Kings Thaba Motswere (Pty) Ltd [2016] ZAECGHC 137 (10 November 2016) acknowledged the new standard created by section 17 but added that the contextual construction of the phrase

“reasonable prospect of success’ still requires of the judge, whose judgment is sought to be appealed against, to consider, objectively and dispassionately, whether there are reasonable prospects that another court may well find merit in argument advanced by the losing party.”

[6] In Hunter v Financial Services Board 2017 JDR 0941 (GP) it was held that leave to appeal may only be granted if the court of first instance is of the opinion that the appeal would have reasonable prospects of success or is arguable. There must therefore be merit in the applicant’s argument in support of the application for leave to appeal and the applicant must satisfy the court that the appeal would, not might, have reasonable prospects of success either on facts or the law. Furthermore, the peremptory provisions of Rule 49 (1) (b) require a litigant in an application of this nature to clearly and succinctly set out the grounds of appeal in unambiguous terms. Songono v Minister of Law and Order 1996 (4) SA 384.

[7] The plaintiff in this matter obtained a summary judgment against the defendants on the 22 claims which are all based on suretyships which the Second and Third Defendants executed in favour of the Plaintiff for the debts of the First Defendant, Afri-Link Logistics CC. The claims arise out of 22 lease agreements concluded between the First Defendant and the Plaintiff. It was not disputed that the Plaintiff performed in terms of the lease agreements and that the First Defendant breached the agreements. Due to the failure by the First Defendant to perform in terms of the lease agreements, the Plaintiff cancelled all the agreements and had the 22 assets sold and the proceeds thereof credited to the accounts of the First Defendant.

[8] The Plaintiff subsequently issued summons for the recovery of the outstanding balances and then proceeded to obtain summary judgment against the Second and Third Defendants. The Plaintiff claimed that the Defendants are indebted to it for the amounts set out in the prayers as certified in the 22 certificates of balance annexed to the declaration.

Grounds for leave to appeal

[9] The Second Respondent’s leave to appeal is based on very narrow grounds. It revolves around the certificates of balance which underpinned the application. The first ground is that the certificates of balance in respect of the various claims constitute hearsay evidence. The second ground is that the said these do not detail the calculation of the outstanding balance and further do not factor in the sale of the trucks involved.

Certificate of balance constitute hearsay evidence

[10] Although the Second Defendant contended in the notice of leave to appeal that the certificates of balance constituted hearsay evidence as envisaged in section 3 of the Law of Evidence Amendment Act 45 of 1988, this ground was abandoned at the hearing of the application by the counsel for the Second Defendant. It should nonetheless be mentioned that this contention was in any event misplaced and bound to fail as in the first place the certificates in question cannot constitute hearsay evidence as it is evident and not disputed that the deponent to the affidavit verifying the certificates of balance is the same person who confirmed the cause of action as well as the amounts claimed. In this case the deponent to a verifying affidavit needed to only confirm the cause of action provided that the certificate of balance is referred to in the summons. Therefore, nothing turns on this aspect as the required confirmation was met.

Calculation of the outstanding amounts

[11] Concerning the calculation of the outstanding amounts, it is contended that there is no evidence that the sale of the trucks in question was considered in the calculation and that there is therefore a dispute over the veracity of the documents. However, what the Second Defendant fails to mention here is that the parties agreed in their contract that when produced, a certificate of balance will constitute sufficient and conclusive evidence of the outstanding amount for the purposes of judgment. Consequently, the certificates in this matter constituted prima facie proof of the amounts outstanding. Not only were the certificates produced, but they were also referred to in the summons. In denying their correctness, the defendant alleged that they are not detailed enough and do not reflect the deduction of the amounts realized when the trucks were stolen.

[12] This contention by the defendant is without merit. It is trite that where the parties have agreed in their contract that a certificate of balance will serve as proof of the outstanding amount, the certificate will be accepted as sufficient to prove of that amount unless the contrary is proven by the party challenging it. The onus is on the party attacking the veracity of the certificate of balance to demonstrate that it is inaccurate. See Absa Bank Ltd V Le Roux and Others 2014 (1) SA 475 (WCC).

[13] In any event, the defendants did not seriously dispute the veracity of the certificates which therefore have become conclusive evidence of the total amount owing after the sale of the properties. There was no justification for the rejection of these certificates hence the defendant’s halfhearted and terse challenge was rejected. This ground of appeal therefore also stands to fail.

Conclusion

[14] I consequently conclude that the application for leave to appeal should fail as there is no reasonable prospect that another court would come to a different conclusion. The application accordingly stands to be dismissed with costs.

Order

[15] In the result I make the following order:

The application for leave to appeal is dismissed with costs.

MBG LANGA

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Advocate D Mtshweni

Instructed by: MB Tshabangu Incorporated, Pretoria.

For the Respondent: Advocate C Van der Merwe

Instructed by: Marianne Pretorius Attorney, Helderkruin.

Heard on: 01 November 2023

Delivered on: 13 December 2023

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 13 December 2023.