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South Africa Judgment

North Gauteng High Court, Pretoria

Spitz v Firstrand Bank Limited and Others (69692-2014; 32230-2001; 87714-2014) [2017] ZAGPPHC 254 (1 June 2017)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The application for leave to appeal was dismissed because the applicant failed to raise any material error of fact or law in the original judgment. The allegations of bias and denial of a fair hearing were unfounded, and the applicant did not produce any new evidence or documents to support his case for rescission. The principles applied in the main judgment, including those from Childerley Estate Stores, were correctly interpreted and applied. Statutory provisions precluded leave to appeal against the provisional sequestration order. The applicant did not challenge the factual or legal basis for the declaration as a vexatious litigant. There was no reasonable prospect that another court would reach a different conclusion.

Court disposition

Application for leave to appeal dismissed with costs, including costs of two counsel.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of the application, including the costs of employing two counsel.

02

Material facts

Parties

Barry Kuper Spitz

Applicant Counsel: Adv JA du Plessis

Firstrand Bank Limited

Respondent Counsel: Adv N Maritz SC

Lauritz Lanser Dippenaar

Respondent

Firstrand Limited

Respondent Counsel: Adv B Swart SC

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment on Rescission, Sequestration, Striking Out, and Vexatious Litigant Orders.

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant alleged denial of a fair hearing, judicial bias, and fraud by the respondents. He argued that the court erred in interpreting the contract and legislation, and that financial regulator announcements suggested the existence of documents proving disputed revenue targets. He further claimed that counsel for the respondents misled the court regarding the principles in Childerley Estate Stores v Standard Bank of SA Ltd.
Respondent
The respondents, represented by senior counsel, argued that the grounds for leave to appeal were repetitive, unfounded, and failed to identify any material error of fact or law. They maintained that the applicant had not produced any new documents or evidence, and that the principles applied from Childerley Estate Stores were correct. They denied any bias or procedural unfairness.

05

Court’s reasoning

  1. 01

    Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163

    A party seeking rescission must produce new evidence or documents that could reasonably alter the outcome.

  2. 02

    Section 150(5) of the Insolvency Act

    Leave to appeal against a provisional sequestration order is precluded by statute.

  3. 03

    Vexatious Proceedings Act

    A declaration of vexatious litigant requires a finding of persistent, meritless litigation.

06

Ratio, limits and disposition

Ratio decidendi

The application for leave to appeal was dismissed because the applicant failed to raise any material error of fact or law in the original judgment. The allegations of bias and denial of a fair hearing were unfounded, and the applicant did not produce any new evidence or documents to support his case for rescission. The principles applied in the main judgment, including those from Childerley Estate Stores, were correctly interpreted and applied. Statutory provisions precluded leave to appeal against the provisional sequestration order. The applicant did not challenge the factual or legal basis for the declaration as a vexatious litigant. There was no reasonable prospect that another court would reach a different conclusion.

Obiter and limits

  • Litigants must be prepared to face robust exchanges in court; judicial remarks do not necessarily indicate bias.
  • The style and substance of the applicant's repeated applications were scurrilous and without foundation.

Court disposition

Application for leave to appeal dismissed with costs, including costs of two counsel.

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of the application, including the costs of employing two counsel.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2017] ZAGPPHC 254

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No: 69692/2014

Case No:87714/2014

Case No: 32230/2001

1/6/2017

Not reportable

In the matters between:

BARRY

KUPER SPITZ Applicant

and

FIRSTRAND

BANK LIMITED First Respondent

LAURITZ

LANSER DIPPENAAR Second Respondent

FIRSTRAND LIMITED Third Respondent

LEAVE

TO APPEAL JUDGMENT

MURPHY J

1. The applicant has applied for leave to appeal against my judgment dated 15 September 2016 and the various orders made therein variously dismissing his application for rescission of judgment, provisionally sequestrating him, striking out an action and declaring him to be a vexatious litigant with the normal associated consequences.

2. The application for leave to appeal is drafted in a similar style to that employed by the applicant in the several applications which he has brought against the respondent. Many of the allegations are scurrilous and without foundation. They repeat much of what has been dealt with in the main judgment and little benefit will be obtained by traversing them.

3. The grounds raised allege variously that he was denied a fair hearing, the respondents committed acts of fraud, the court erred in interpreting the relevant contract and the provisions of legislation, erred on the facts and treated him unfairly.

4. Mr Maritz SC dealt fully in argument with the issues of bias raised in the notice, and in particular certain remarks made by him regarding the applicant during the proceedings before me to which the applicant took offence. The argument is on record and need not be repeated: suffice it to say that it is not reasonable to infer from my failure to castigate Mr Maritz for his remarks that I was biased towards the applicant. The remarks, in any event, were not beyond the pale. As another court has said:

“He who enters the lists must be prepared to take verbal knocks. A contest in the courts is not to be equated to the proceedings of a young ladies debating society.”

5. Regarding the application for leave to appeal against the provisional sequestration order, I am precluded by the provisions of section 150(5) of the Insolvency Act from granting such leave.

6. With regard to the order declaring the applicant a vexatious litigant, and the consequent orders, the applicant challenges no

material finding made by me or indicates any error of fact or law in my analysis of the evidence or in the application of the law

applicable to vexatious litigants.

7. In relation to the rescission application, the applicant rested his entire case on the hypothesis that certain announcements by the financial regulators indicate the possibility that certain documents exist. Yet he confirmed in argument that he could not identify or produce any such document, or describe with any specificity the nature or content of any document which might prove that the disputed revenue targets had been achieved. The application for rescission is manifestly unfounded and there is no reasonable prospect that another court will find otherwise.

8. The applicant further alleged that Mr Swart SC, counsel for the respondents, misled the court by relying on an incorrect interpretation of the principles enunciated in Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163. Mr Swart did not mislead me. The principles taken from Childerley enunciated in paragraph 39 of the judgment and applied in paragraph 40 are correct. The applicant failed to produce any new documents.

Thus the nature of the fault requirement in relation to the non-production thereof is of no consequence.

9. In the result, the application for leave to appeal is dismissed with costs, including the costs of employing two counsel.

JR MURPHY

JUDGE OF THE HIGH

COURT

GAUTENG, PRETORIA

Date Heard: 1 March 2017

Date of judgment: June 2017

For the Applicant: Adv JA du Plessis

Instructed By: Mr BK Spitz

For the Respondent: Adv N Maritz SC; Adv B Swart SC and Adv L Kilmartin

Instructed By: Norton Rose Attorneys

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163

Case cited

Insolvency Act

Legislation

Legislation referenced in the available case record.

Vexatious Proceedings Act

Legislation

Legislation referenced in the available case record.

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