Rock Foundation Properties CC and Another v Dosvelt Properties (Pty) Limited and Another (20/28515) [2023] ZAGPJHC 408 (2 May 2023)

Rock Foundation Properties CC and Another v Dosvelt Properties (Pty) Limited and Another (20/28515) [2023] ZAGPJHC 408 (2 May 2023)

The court found that the applicants failed to demonstrate that the agreements constituted a disguised loan rather than an investment and sale transaction. The applicants' arguments were inconsistent with the common cause facts and the founding affidavit. Applying the Plascon Evans rule, the suite of agreements must be accepted as they purport to be—a sale, a lease, and an option to purchase. The court held that the applicants did not meet the threshold for leave to appeal as required by section 17 of the Superior Courts Act. The application for leave to appeal was dismissed, and costs were awarded against the applicants, including the costs of senior counsel and two counsel where employed.

Citation
[2023] ZAGPJHC 408
Parties
Applicant: Rock Foundation Properties CC; Applicant: Esther Nyarwai Ndegwa; Respondent: Dosvelt Properties (Pty) Limited; Respondent: Eli Nathan Chaitowitz
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 May 2023
Case Number
20/28515
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Judgment
Outcome
Application for leave to appeal dismissed with costs, including costs of senior counsel and two counsel where employed.
Judges
I Opperman
Legal Topics
Leave to Appeal, Nature of Agreement, National Credit Act, Sale and Leaseback, Costs Order
Civil Procedure Commercial and Corporate Leave to Appeal Nature of Agreement National Credit Act Sale and Leaseback Costs Order

Case Brief

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Parties

Rock Foundation Properties CC

Applicant

Esther Nyarwai Ndegwa

Applicant

Dosvelt Properties (Pty) Limited

Respondent

Eli Nathan Chaitowitz

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Judgment

Legal Issues

  1. 1 Whether the agreements between the parties constituted a loan or an investment and sale transaction.
  2. 2 Whether the application for leave to appeal meets the threshold of reasonable prospects of success under section 17 of the Superior Courts Act.
  3. 3 Whether the costs order should include costs of senior counsel and two counsel.

Ratio Decidendi

The court found that the applicants failed to demonstrate that the agreements constituted a disguised loan rather than an investment and sale transaction. The applicants' arguments were inconsistent with the common cause facts and the founding affidavit. Applying the Plascon Evans rule, the suite of agreements must be accepted as they purport to be—a sale, a lease, and an option to purchase. The court held that the applicants did not meet the threshold for leave to appeal as required by section 17 of the Superior Courts Act. The application for leave to appeal was dismissed, and costs were awarded against the applicants, including the costs of senior counsel and two counsel where employed.

Court Disposition

Application for leave to appeal dismissed with costs, including costs of senior counsel and two counsel where employed.

Orders

  • The application for leave to appeal is dismissed with costs.
  • Costs are to be paid by Rock Foundation Properties CC and Esther Nyarwai Ndegwa jointly and severally, the one paying the other to be absolved.