Motor Hoogland Bethlehem CC and Others v Sasfin Bank Ltd and Another (3719/2020) [2022] ZAFSHC 9 (21 January 2022)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case no: 3719/2020

In the matter between: MOTOR HOOGLAND BETHLEHEM CC 1st Applicant IGNATIUS MICHAEL FERREIRA N.O. 2nd Applicant FREDERICK FERREIRA N.O. 3rd Applicant PIETER YZELLE MORRISON N.O. 4th Applicant IGNATIUS MICHAEL FERREIRA N.O. 5th Applicant FREDERICK FERREIRA N.O. 6th Applicant PIETER YZELLE MORRISON N.O. 7th Applicant and SASFIN BANK LTD 1st Respondent SUNLYN (PTY) LTD 2nd Respondent

CORAM: JP DAFFUE J

HEARD ON: 19 JANUARY 2022

DELIVERED ON: 21 JANUARY 2022

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 14:00 on 21 JANUARY 2022.

I INTRODUCTION

[1] This is an application for leave to appeal to the full bench of this division against the whole judgment and order of Loubser J dated 4 November 2021 in terms whereof summary judgment was granted against seven defendants, they being the applicants in this application for leave to appeal.

[2] The application was allocated to me for adjudication in the absence of Loubser J who is on long leave.

[3] The legal representatives for the parties agreed to a virtual hearing. They also filed additional heads of argument on invitation. I do not intend to give a thorough judgment, bearing in mind the nature of the proceedings.

II THE TEST IN ADJUDICATING APPLICATIONS FOR LEAVE TO APPEAL

[4] The Superior Courts Act[1] raised the bar for the granting of leave to appeal[2]. Section 17(1) now provides that leave to appeal may only be granted 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;…[3]

III LEAVE TO APPEAL IN SUMMARY JUDGMENT PROCEEDINGS

[5] The purpose of summary judgment is clear. It enables a plaintiff with a clear case to obtain speedy enforcement of the claim in a case where the defendant has no real defence. The Supreme Court of Appeal stipulated as follows in Majola v Nitro Securitisation 1 (Pty) Ltd:[4]

“It is necessary to say something regarding the grant of leave to appeal in cases in which summary judgment has been granted…… If a court hearing an application for summary judgment is satisfied that a defendant has no bona fide defence to a plaintiff’s claim and grants summary judgment as a consequence, it should be slow thereafter to grant leave to appeal, lest it undermine the very purpose of the procedure.”

IV THE REASONS FOR GRANTING SUMMARY JUDGMENT

[6] Loubser J dealt with all relevant issues raised by the parties during argument and gave an extensive judgment. There is no reason to provide any further reasons in substantiation of the order granted, save to mention some further aspects relating to submissions made in the applicants’ additional heads of argument and during oral

argument.

[7] In so far as summary judgment procedure follows upon the filing of a defendant’s plea, unlike in the past before the amendment of rule 32, the plaintiff is now not only entitled, but also obliged to comply with the provisions of rule 32(2)(b) which reads as followed:

“(b) The plaintiff shall, in the affidavit referred to in subrule (2)(a), verify the cause of action and the amount, if any, claimed, and identify any point of law relied upon and the facts upon which the plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial.”

[8] In so far as a defendant elects to rely on an affidavit in order to oppose a summary judgment application, rule 32(3)(b) stipulates as follows:

“(b) satisfy the court by affidavit (which shall be delivered five days before the day on which the application is to be heard), or with the leave of the court by oral evidence of such defendant or of any other person who can swear positively to the fact that the defendant has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.” (emphasis added)

[9] A defendant is not required to show that the defence is likely to prevail, but only that the defence is legally cognisable on the face of it, ie that it is genuine or bona fide. It has always been the case that the defendant did not need to prove the defence, but facts – material facts and particulars - had to be set out in the answering affidavit which if proved at the trial would constitute an answer to the plaintiff’s claim. It is not good enough to rely on vague allegations to cause suspicion.

[10] I agree with the reasoning of Binns-Ward J in Tumileng Trading CC and Another v National Security and Fire (Pty) Ltd[5]. Binns-Ward J went further in Tumileng and stated as follows:[6]

“However, does the fact that the bones of a triable defence have been made out in the plea mean that summary judgment must be refused? The answer is clearly 'no'! The reason for the negative answer is that the enquiry is not whether the plea discloses 'an issue for trial' in the literal sense of those words, it is whether the ostensible defence that has been pleaded is bona fide or not. As discussed earlier, that that is the relevant enquiry in a summary application follows from the rule-maker's decision to leave subrule 32(3) substantively unamended. If one were to apply the amended rule differently, it would be impossible to marry the requirement of a plaintiff apparently posited by subrule 32(2)(b) (viz showing that 'the defence as pleaded does not raise any issue for trial') with what is demanded of a defendant in terms of subrule 32(3)(b) (viz showing that its defence to the action is bona fide, ie that its ostensible defence is not a sham). The respective supporting and opposing affidavits would pass each other like ships in the night if one were to understand the notion of 'issue for trial' in subrule 32(2)(b) as denoting something different from a 'bona fide defence' within the meaning of subrule 32(3)(b).”

[11] A defendant in summary judgment procedure must now deal with argumentative material in the answering affidavit and in failing to do that, should not be surprised if the application is granted. It is expected of a defendant in these kind of proceedings to give particulars of, eg alleged breach of contract by the plaintiff, or misrepresentation or fraud relied upon or alleged inadequate workmanship or that specific equipment, properly identified, were not delivered and/or that those properly identified equipment were defective, and in each case, the material facts relied upon for coming to the conclusions must be presented under oath.

[12] In this regard it is submitted on behalf of the applicants that in so far as the respondents were not party to the conclusion of the original agreements giving rise to the claim ceded to the respondents, any failure on the part of the applicants to further elaborate on the nature and extent of the misrepresentations which induced them to purchase the equipment would presently be of no consequence because the respondents do not have personal knowledge of the circumstances giving rise to the transaction originally entered into.

[13] I do not agree with the aforesaid submission. I am satisfied that the applicants (defendants in the main action) were extremely vague and failed to deal with the argumentative material set out in the affidavit in support of the summary judgment application. They failed to present the court with material facts and the nature and grounds of the defence were not fully disclosed.

[14] The applicants also tried to rely on Mr Govender’s lack of knowledge, he being the deponent to the supporting affidavit, as to how the purchase and installation of the equipment came about. This aspect was fully dealt with in inter alia paragraph 24 of the judgment. The original lessor and plaintiffs in the main action featured in the rental agreement as financing institutions only. They were not directly involved in the supply and installation of the equipment. I also need to point out that not a single fact testified to by Mr Govender was placed in dispute save for the applicants (defendants) denying facts on the basis that they did not have knowledge thereof.

[15] The applicability of the Private Security Industry Regulation Act[7] and the Electronic Communications Act[8] was dealt with during the exception proceedings by Page AJ, but Loubser J again dealt with that during the adjudication of the

summary judgment application. As held by Loubser J, the alleged applicability of these two Acts does not give rise to a triable

issue. The applicants (defendants) failed to provide the court with material facts on which such contention was based.

[16] A full and comprehensive reading of the judgment of Loubser J will indicate that he considered all the defences raised, that he was fully mindful thereof and that he properly exercised his discretion.

V CONCLUSION

[17] I am satisfied that the appeal would have no reasonable prospect of success and there is also no compelling reason why the appeal should be heard by the full bench or any other court of appeal.

VI ORDER

[18] The application for leave to appeal is dismissed with costs.

J P DAFFUE J

On behalf of the Applicants Adv C Van Rooyen Instructed by: Ayanda Tsikayi Attorneys c/o Kramer Weihmann Attorneys Bloemfontein On behalf of the Respondent Adv S Aucamp Instructed by KWA Attorneys c/o Hill, McHardy & Herbst Inc Bloemfontein

[1] Act 10 of 2013

[2] The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others, LCC case no 14R/2014 dated 3 November 2014 (unreported); MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176 at para 17 relying on the dictum in Smith v S 2012 (1) SACR 567 (SCA) at para 7: “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.”

[3] Sub-sections 17(1)(a)(i) and (ii), the two sub-sections relied upon by the applicants in casu

[4] 2012 (1) SA 226 (SCA) at para [25]

[5] 2020 (6) SA 624 WCC at paras 17 - 28

[6] Ibid para 40

[7] 56 of 2001

[8] 36 van 2005