Nedcor bank Limited v Victor N.O and Others (9/2006) [2007] ZANWHC 34 (26 July 2007)

IN THE HIGH COURT OF SOUHT AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CIV APPEAL NR: 9/2006

In the matter between:

NEDCOR BANK LIMITED

Applicant

and

W J VICTOR N.O.

First Respondent

J L DU PLESSIS N.O. Second Respondent

W H J CILLIERS N.O. Third Respondent

W J VICTOR Fourth Respondent

M J VICTOR

Fifth Respondent

M E LUTTIG Sixth Respondent

M E LUTTIG N.O. Seventh Respondent

J L DU PLESSIS N.O. Eighth Respondent

W H J CILLIERS N.O. Ninth Respondent

FULL BENCH APPLICATION FOR LEAVE TO APPEAL

LEEUW J; HENDRICKS J; LANDMAN J

DATE OF HEARING : 04 MAY 2007

DATE OF JUDGMENT : 26 July 2007

COUNSEL FOR THE APPLICANT : ADV AJR VAN RHYN SC

WITH

ADV N SNELLENBURG

COUNSEL FOR THE RESPONDENTS: ADV JHL SCHEEPERS

JUDGMENT

HENDRICKS J:

[A] Introduction:-

[1] This is an Application for Leave to Appeal to the Supreme Court of Appeal against the majority judgment in an appeal delivered on 27 October 2006.

[B] Ad Condonation:-

[2] An application was made for condonation of the late filing of Applicant’s Heads of Argument. The Court, after listening to the submissions of counsel, granted condonation.

[C] Ad Application for Leave to Appeal:-

[3] It is trite law that, in an application of this nature, the onus is on the Applicant to show the existence of reasonable prospects of success on appeal. Put differently, the Applicant must prove that a reasonable possibility exist that another court may come to a different decision than what this Court had arrived at.

See:- Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343 C-D;

Janit v Van den Heever and Another NNO 2001 (1) SA 1962 (W) at 1064.

[D] Ad Merits:-

[i] Appealability of the default judgment:-

[4] The first argument by Mr Van Rhyn SC, on behalf of the Applicants, centred around the question of the appeallabilty of the default judgment granted by the Magistrate in the Court a quo.

[5] It needs to be mentioned that this was not an issue that was raised in opposition of the appeal. It was however addressed in the judgements (majority as well as in the minority) of this Court, needless to say with different views.

[6] In relying on the judgment of Sparks v David Polliack & Co (Pty) Ltd 1963 (2) SA 491 (T), Mr Van Rhyn SC submitted that there was no waiver or pre-emption of the default judgment hence it was not a final judgment and therefore not appealable.

[7] In its majority judgment the Court specifically addressed this issue and found that due to the passage of time, the default judgment had become final and therefore appealable.

See:- paragraphs [41] - [46] of the majority judgment; and Sparks v David Polliack & Co (Pty) Ltd 1963 (2) SA 491 (T) at pg 496 B-G.

[ii] Irregularity committed:-

[8] Secondly, Mr Van Rhyn SC submitted that the Court erred in finding on appeal, that an irregularity had been committed by the Magistrate in allowing Mr Luttig to appear on behalf of the Appellants, when in law, he was not entitled to do so.

[9] He submitted that an application for the rescission of the judgement should have been made in the Court a quo óŕ the decision of the Court a quo should have been taken on review.

[10] This Court has inherent review powers.

See:- Van Wyk v Midrand Town Council and Others 1991 (4) SA 185 (WLD);

Magano & Another v District Magistrate, Johannesburg, & ORS (2) 1994 (2) SA 172;

Davids & Others v Van Straaten & Others [2005] ZAWCHC 16; 2005 (4) SA 468 (CPD).

[E] Conclusion:-

[11] I am of the view that there are no prospects of success on appeal on either of the aforementioned grounds. The application for leave to appeal should therefore be dismissed with costs.

[F] Order:-

[12] Consequently, the following order is made:-

[i] The application for leave to appeal to the Supreme Court of Appeal is dismissed.

[ii] The Applicant (Respondent in the Appeal) is ordered to pay the costs of this application.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

M M LEEUW

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANTS: MINCHIN & KELLY INC.