Segaole Trucking and Transport v Man Financial Services SA (Pty) Ltd t/a Man Financial Services (Leave to Appeal) (39/2023) [2024] ZANWHC 311 (31 October 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO: 39/2023

In the matter between:

SEGAOLE TRUCKING AND TRANSPORT (Registration number: 2018/515666/07) 1st Applicant BAY LEAP TRADING 11 (PTY) LTD 2ND Applicant THATO NOEL SEGAOLE (ID: 8[…]) 3RD Applicant ANITA SMANGELE SEGAOLE (ID: 9[…]) 4th Applicant And MAN FINANCIAL SERVICES SA (PTY) LTD t/a MAN FINANCIAL SERVICES (Registration number: 1997/011686/07) Respondent In re: MAN FINANCIAL SERVICES SA (PTY)LTD t/a MAN FINANCIAL SERVICES (REGISTRATION NUMBER: 1997/011686/07) Applicant AND SEGAOLETRUCKINGANDTRANSPORT(PTY)LTD (REGISTRATION NUMBER: 2018/515666/07) 1ST Respondent BAY LEAP TRADING 11(PTY) LTD (REGISTRATION NUMBER: 2018/386004/07) 2ND Respondent THATO NOEL SEGAOLE (IDENTITY NUMBER: 8[…]) 3RD Respondent ANITA SMANGELE SEGAOLE (IDENTITY NUMBER: 9[…]) 4TH Respondent

Delivered: This judgment was transmitted by way of email to the legal representatives of the parties. The date of hand down is deemed to be 31 OCTOBER 2024.

ORDER

The following order is made:

1. Application for leave to appeal is dismissed.

2. The applicants are ordered to pay costs jointly and severally the one paying the other to be absolved on scale B.

LEAVE TO APPEAL JUDGMENT

DJAJE DJP

[1] This leave to appeal is against the whole judgment handed down on 11 July 2024 wherein the following order was granted:

“1. Cancellation of the instalment sale agreement between the parties confirmed:

2. Return of the goods;

2.1 2021 NEW MAN TGS- 27 440 6X4 BBS-L

ENGINE NUMBER: 5[…]

CHASSIS NUMBER: A[…]

2.2 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.3 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.4 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

ENGINE NUMBER: A[…]

2.5 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.6 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.7 2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

2.8 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

2.9 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

2.10 2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

2.11 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

2.12 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.13 2021 NEW MAN TGS- 27 440 6X4 BBS-L

2.14 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3. The 1st and 2nd respondent are ordered to pay costs jointly and severally the one paying the other to be absolved on scale B.”

[2] In the leave to appeal the following grounds of appeal have been raised:

“1. The appeal would have reasonable prospects of success.

2. Another Court would have found differently on the facts before the court.

3. The Court erred if finding:

3.1 That the Respondents did not raise and valid/ bona fide defence to the Applicant’s claim.

3.2 That the Applicant is entitled to exercise its rights to cancel the agreements and demand return of the goods as provided for in the agreements between the parties.

3.3 Granting an order in favour of the Applicant confirming cancellation of the instalment agreements between the parties.

3.4 Ordering the return of the following goods:

3.4.1 2021 NEW MAN TGS- 27 440 6X4 BBS-L

CHASSIS NUMBER: A[…]

3.4.2 2021 NEW MAN TGS- 27 440 6X4 BBS-L

3.4.3 2021 NEW MAN TGS- 27 440 6X4 BBS-L

3.4.4 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3.4.5 2021 NEW MAN TGS- 27 440 6X4 BBS-L

3.4.6 2021 NEW MAN TGS- 27 440 6X4 BBS-L

3.4.7 2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

3.4.8 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3.4.9 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3.4.10 2021 NEW AFRIT Z5M TANDEM/ TANDEM AXLE S7

3.4.11 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3.4.12 2021 NEW MAN TGS- 27 440 6X4 BBS-L

3.4.13 2021 NEW MAN TGS- 27 440 6X4 BBS-L

3.4.14 2021 NEW AFRIT 25M TANDEM/ TANDEM AXLE S7

3.5 That the First and Second Respondents pay costs jointly and severally the one paying the other to be absolved on scale B.

4. The learned Madam Justice ought to have found that:

4.1 Although the Applicant’s claim against the Respondents did not constitute a monetary judgment, the originating cause of action for the prayer for cancellation of the agreement was based on monetary value, as a result of missed payments by the Respondents.

4.2 When the instalments agreements were concluded between the Applicant and the Respondents, security was granted in favour of the Respondent to cater for any event of default by the Applicants.

4.3 The total sum of the policy amount to four million five hundred and eighty-two thousand one hundred and sixty-two rand eighty-six cents (R4 582 162.86), which policy cannot be ignored as it forms part of the crux of the matter.

4.4 The Court erred in failing to take cognise of the prescripts of Rule 32 of the Uniform Rules of Court which specifically provide that when security is given the Court is compelled to give leave to defend. The Applicant conceded to being aware of the security which was given for any of the default repayments, and it should have utilised the security to cover all the missed repayments as purported in the particulars of claim.

4.5 There is no evidence before the court by the Applicant to prove that the security was utilised before instituting the current legal proceedings. The Applicants were therefore not in breach of any agreement as any of the purported missed repayments were covered by the security which was way more that the purported claimed amount.

4.6 The Applicant was not entitled under the circumstances stated above for the relief as prayed for in the Summary Judgment as the proceedings are premature.

4.7 The application for summary judgment was accordingly supposed to have been denied and leave be granted to defend the matter.”

[3] The test to be applied in an application for leave to appeal is set out in section 17 (1)(a) of the Superior Courts Act 10 of 2013 which provides that:

“ (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;”

[4] The Supreme Court of Appeal in Ramakatsa and Others v African National Congress and Another [2021] JOL 49993 (SCA) March 2021 dealt with the issue of prospects of success in a leave to appeal as follows:

“If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test of reasonable prospect of success postulates a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the appellants in this matter need to convince this Court on proper grounds that they have prospects of success on appeal.”

[5] In the summary judgment application the applicants fell in arrears of the sale agreement and the respondent cancelled the agreement by notice on 12 December 2022 and claimed payment of the whole outstanding balance. The applicants failed to raise a bona fide defence to the claim by the respondent. The argument by the applicants that they provided security in the form of an endowment

policy is unsubstantiated and does not qualify as a bona fide defence. In fact, the applicants in their plea admitted that they were in arrears. It is my view that there is no valid defence to the respondent’s claim. No prospects of success exist and the application for leave to appeal should be dismissed with costs.

Order:

[6] Consequently, the following order is made:

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT

APPEARANCES

DATE OF HEARING: 11 OCTOBER 2024 DATE OF JUDGMENT: 31 OCTOBER 2024 COUNSEL FOR THE APPLICANT: MR MUHANGO COUNSEL FOR THE RESPONDENTS: ADV Z M DU PLESSIS