Peet Bezuidenhout Familie Trust and Others v Nedbank Limited (74419/15) [2020] ZAGPPHC 276 (29 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 74419/15

In the matter between:

PEET BEZUIDENHOUT

FAMILIE TRUST FIRST

APPLICANT

PETRUS M.W.

BEZUIDENHOUT N.O

SECOND

APPLICANT

PERTUS M.W BEZUIDENHOUT

THIRD

APPLICANT

PETRUS JOHANNES E.

MEINTJIES N.O.

FOURTH

APPLICANT

DE WET BEZUIDENHOUT N.O.

FIFTH

APPLICANT

CESKA BEZUIDENHOUT N.O. SIXTH

APPLICANT

PETRUS BEZUIDENHOUT N.O.

SEVENTH

APPLICANT

ANDRE BEZUIDENHOUT N.O.

EIGHTH

APPLICANT

and

NEDBANK LIMITED

RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

COLLIS J:

INTRODUCTION

[1] In the present application, the applicants are seeking leave to appeal the judgment of this court handed down on 24 April 2020.[1]

[2] The application is premised on the grounds as listed in the Application for Leave to Appeal.

LEGAL PRINCIPLES

[3] Section 17 of the Superior Court’s Act provides as follows:[2]

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

(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] As to the test to be applied by a court in considering an application for leave to appeal, Bertelsmann J in The Mont Chevaux

Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the following:

‘It is clear that the threshold for granting leave to appeal against a judgment of a high Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different

conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.’

[5] ‘In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other word, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’[3]

[6] The applicants and the respondent on request by this court filed written Heads of Argument in order to facilitate the virtual hearing of the matter.

[7] I do not propose to deal with each and every ground individually advanced by the applicants in this application for leave to appeal but will do so in a summarised fashion.

APPLICANTS’ SUBMISSIONS

[8] Counsel for the applicants contended that leave to appeal should be granted in that the appeal would have a reasonable prospect of success. In essence the grounds advanced by the applicants in seeking leave to appeal is that the applicants indeed had given a reasonable explanation as to why they were not present at court on 15 November 2018 when the default judgment was sought and granted against them. Furthermore, that the court erred in finding that the applicants failure to explain the reason as to why they failed to comply with the court order compelling compliance with Rule 35(3) and Rule 35(12) notices resulted in their application lacking bona fides. In addition to the above, they contended that this court had failed to deal with their bona fide defence, i.e. that no valid loan agreement had been entered into, in circumstances where the loan agreement was only signed by one by one trustee who was not authorised by the other trustees to enter into the loan agreement on behalf of the trust.

RESPONDENTS’ SUBMISSIONS

[9] On behalf of the respondent, counsel had argued that no reasonable prospect exists that another court would find for the applicants. Furthermore, that the arguments now advanced in seeking leave to appeal this court’s judgment are the same arguments presented by the applicants when the main application was argued and that this court, comprehensively dealt with these arguments in its judgment. In addition to the above, that this court correctly had found that in as far as the ineptitude or remissness by the applicants’ erstwhile attorneys are concerned, they failed to explain why such non-compliance should not be imputed on them. As far as their bona fide defence is concerned as well as their failure to have complied with the Rule 35(3) and Rule 35(12) notices, this court

expressly dealt with both aspects in its judgment and there simply exists no basis to contend that same was not canvassed in the court’s judgment.

[10] Having heard counsel and the submissions made, I am of the opinion, that the appeal would not have a reasonable prospect of

success. None of the ground raised in the application for leave to appeal, were not dealt with in the judgment of this court delivered

on 24 April 2020.

ORDER

[11] Consequently the following order is made:

11.1 The application for leave to appeal is dismissed, with costs, such costs to

include the costs consequent upon the employment of two counsel

C. J. COLLIS

JUDGE OF THE HIGH COURT

GAUTENG DIVISION PRETORIA

APPEARANCES:

FOR APPLICANTS: ADV.

H. E. BAER

INSTRUCTED BY:

J.J. BADENHORST & ASSOCIATES

INC. ATTORNEYS

FOR THE RESPONDENT: ADV. S. BEKKER SC AND ADV D. STRYDOM

INSTRUCTED BY: BEZUIDENHOUD

VAN ZYL AND

ASSOCIATES INC.

DATE OF HEARING:

26 JUNE 2020

DATE OF JUDGMENT:

29 JUNE 2020

Judgment electronically transmitted.

[1] Judgment Collis J delivered 24 April 2020

[2] Act 10 of 2013

[3] S v Smith 2012 (1) SACR 567 (SCA) at para 7