Vermaak and Others v Land and Agricultural Development Bank of South Africa (4316/2020) [2021] ZAFSHC 98 (1 April 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

Case No.: 4316/2020

In the matter between:

SALMON VERMAAK

1st Applicant[1]

JOAN VERMAAK

2nd Applicant

SALMON VERMAAK N.O.

3rd Applicant

JOAN VERMAAK N. O.

4th Applicant

GABRIEL FRANCOIS LINGEN FRONEMAN N.O.

5th Applicant

(In their capacities as trustees of the Gunsteling Trust

IT 1165/2004)

and

THE LAND AND AGRICULTURAL DEVELOPMENT

BANK OF SOUTH AFRICA Respondent

Coram:

Opperman, J

Date of hearing: 24 March 2021

Delivered:

The judgment was handed down electronically by circulation to the parties’ legal representatives by email and released to SAFLII on 1 April 2021. The date and time for hand-down is deemed to be on 1 April 2021 at 15h00.

Summary:

Application for leave to appeal - relief under Uniform Rule 46A - abuse of processes of law

JUDGMENT

INTRODUCTION

[1] The case is unique. A case rarely happens in the vacuum wherein the reality of facts bordering thereto may be ignored. The relevance of every aspect must be pondered to prevent injustice and for lack of a

better word in this case; plain “wrongness” that will eventuate. The applicants have managed to cause a rescission

application, application for leave to appeal against a Rule 46A order and a petition to the Supreme Court of Appeals on the urgency of a Rule 45A application; all applicable to one case, to be sub judice and on the roll at the one and same time. This because of a constant delay in their litigation and also remedies that were mistimed.

[2] The timeline of the litigation in this case shows how the applicants of this application for leave to appeal caused the equilibrium of the flow of justice and the administration of justice to end in turmoil.

This caused them to be “confused” in their rights and expectations of the law and to prejudice the respondent. They used the one application’s issues in sub judice-status in the other matter and so on and so on. The common cause chronology of the litigation and events are evidence of this:

1. The application for money judgment was served on them on 13 August 2019.

2. They, notwithstanding having filed a notice of intention to oppose late, also failed to file answering affidavits and thus created the impression that they did not seriously contest the relief sought against them.

3. Neither the filing of a Notice of Set Down on 22 October 2019, nor the service of the applicant’s heads of argument and practice note on 20 November 2019 moved them to show some respect to the rules of litigation and the justice system to commit to a version or reply or reaction and resist the relief sought against them.

4. On 28 November 2019, the applicants, suitably represented by a Legal Practitioner continued to fail to take steps to avoid that the order be granted on an unopposed basis.

5. On 28 November 2019 an order[2] was issued from this Court that:

1. Judgment is granted against the First Respondent, Second Respondent and the Gunsteling Trust, as represented by the Third and Fourth Respondents, as follows:

1.1 Payment in the amount of R1 000 000.00 (One million Rand only) to be paid by the First Respondent, Second Respondent and the Gunsteling Trust each, together with a tempore morae interest at a rate of 10,25% until date of payment.

2. The Respondents to pay the Applicant’s costs on a scale as between attorney and client.

6. Notwithstanding the above the applicants, with blatant insolence to the court order, failed again to show an inkling of acknowledgement to justice and the court; they made no payment on the judgment debt.

7. The Sheriff of the High Court was forced by their conduct to attend the applicant’s residence on 5 February 2020, demanding payment from the applicants personally and serving writs of execution against movable assets of both them and the Gunsteling Trust. Their plane response was that they do not have any money or disposable property to satisfy the writ.

8. With a continued haughty attitude towards the justice system and whilst assisted by a Legal Practitioner(s), they then took 7 months after the order was granted against them, and 5 months after the service of the writs on them; to launch an urgent application in terms of Rule 45A to stay execution. This was on 30 June 2020.

9. The application was struck from the roll for lack of urgency.

10. Instead of setting the stay of the writs on the normal opposed motion roll and having justice takes its course and the evidence vented and adjudicated on the merits, they elected to launch appeals against the failed urgent application that caused extensive delays that threw the course of justice off track. The costs implications must have been notable. The time wasted, improper. Leave to appeal was refused on the ruling in the urgent application and they petitioned the ruling to the Supreme Court of Appeal.

11. During all the above the applicants failed to lodge the application for rescission of the Murray-order; inexplicably so. Again, the rhythm of justice was thrown of balance. This should have been done immediately and would have put an end to much litigation.

12. The above only happened after more than a year after the granting of the order and only after the answering affidavit was filed in the Rule 46A application. The reason for the delays is imperative in the decision to entertain the Rule 46A application.

13. The fact that a rescission application was apparently pending was relevant. The “reason” for delay of the rescission

application was just as relevant.

14. The reason for the delay of the rescission application came to the fore in the hearing of the Rule 46A application on inquiry by the court. The Landbank did not attach a true copy of the cession agreement that caused their right to launch the Default-proceedings and they did not plead that they properly complied with the cession agreement. The applicants did not have access to the document. This issue was solved there and then in court in seconds when counsel for Landbank made the document immediately available.

15. During the hearing of the application for leave to appeal it came to light that the document was supplied on the same afternoon. The explanation that the said document caused the delay was rejected with the contempt it deserved when I remarked that:

Counsel for the Applicant immediately took instructions and it was undertaken that the beleaguered agreement will be made available to the Respondents without delay and volunteered said to be made an order of the court. The court was assured that all requirements were complied with. The Respondents had filed a rescission application without ensuring the veracity of their case. The pending litigation - defense now fell flat.

16. The document was made available and the reason for the delay in the rescission application seemingly and on the information provided to the court, did not exist anymore; hence the conclusion of the case. No further information was supplied as to why the Rule 46A order may not be granted or must be delayed.

17. The applicants filed a rescission application before they knew the contents of the document that caused the application. This is a clear indication of negligent delay of a case. This and the other delays and awkward and obdurate litigation caused the court to hear the Rule 46A application and rule on it.

18. Ironically; this application for leave to appeal was set down for 24 March 2021 and the application for rescission a day later. Again, the cart was put before the horse and the justice system put in turmoil by the Vermaaks and Gunsteling Trust. It would follow that if the Murray-order was rescinded the domino effect might be that the writs of execution and the Rule 46A order would stand to fall in succession. On the other hand, the matter may also come to conclusion if the rescission application failed. That is; if appeals were not going to be lodged and then they have the remedy in terms of section 18(1) read with section 18(5) of the Superior Courts Act 10 of 2013.

19. An application for rescission of judgment does not suspend execution but can form the basis for an application to suspend execution of the judgment.

20. The applicants have now, again, created a situation that might cause consternation in law. The outcome on the petition against the Rule 45A application is not known to me, judgment on this application for leave to appeal has been reserved and the outcome of the rescission

application only became known to me on Friday 26 March 2021.

21. In the meanwhile, justice delayed is justice denied and the delay is caused by the applicants for this leave to appeal on many fronts.

22. On Thursday 25 March 2021 in Case No: 4791/2020, before the Honourable Justice PJ LOUBSER it was ordered as follows:

Having considered the documents before the court and having heard the legal practitioners for the parties:

IT IS ORDERED THAT:

1.

The applications for condonation and for rescission of default judgment are dismissed with costs on the attorney and client scale.

23. In the meantime, the order as on 11 February 2021 still stands:

1. The immovable property described below is declared specially executable and a writ of execution may be issued as envisaged in terms of rule 46A(2) of the Uniform Rules of Court:

Portion 0 of Erf 353 Meyershof EXT 1, Nala Local Municipality, Bothaville RD, Free State Province; Street address at 7 Kiepersol Street, Meyershof, Nala Local Municipality; held by the Gunsteling Trust [IT1165/2004] under the Title Deed T689/2007; subject to the conditions therein contained.

2. The Registrar is authorised to issue a writ of execution against the immovable property.

3. The property be sold by the Applicant or its appointed agent in conjunction with the Sheriff of the Court by public auction or private treaty with a reserve price of R800 000.00 (Eight hundred thousand) set in terms of rule 46A(8) of the Uniform Rules of Court, subject to Applicant’s rights as contained in rule 46A(9).

4. It is included as special conditions of sale that:

4.1 The Applicant electronically provide to the First to Fifth Respondents’ attorney a copy of the cession contract concluded between the Applicant and Suidwes, before close of business on 12 February 2021; and

4.2 The Respondents’ attention are drawn to Section 26 of the Constitution of the Republic of South Africa, 1996 which accords to everyone the right to have access to adequate housing. Should the Respondents claim that the order for execution will infringe with that right, it is incumbent on the Respondents to place information supporting that claim before the Court.

5. The First to the Fifth Respondents are ordered to pay the costs of this Application on a scale as between attorney and client.

[3] It was not in dispute that the Rule 46A application was allowed to be heard but for the pending rescission application. The elements that allowed the Rule 46A order was present and pure in law.

1. There was the 28 November 2019- order for payment in the amount of R1 000 000.00 (One million Rand only) to be paid by the then first respondent, second respondent and the Gunsteling Trust each, together with a tempore morae interest at a rate of 10,25% until date of payment.

2. The order followed on an application launched against the applicants

on 4 September 2019 for R 1 000 000.00 with interest. Despite the fact that the applicant’s application was initially

opposed the applicants failed to file an Answering Affidavit in opposition of the relief sought. The above order notwithstanding, the applicants failed to make payment toward the judgment debt.

3. Landbank instructed the Sheriff to execute an attachment over all the movables based on the order. A warrant of execution was issued on 20 January 2020. The Sheriff was unable to attach any moveable assets or disposable property to satisfy the warrant or any portion thereof.

4. The Gunsteling Trust is the registered owner of the immovable property at issue. After due consideration of the factors that were set out in the Founding Affidavit at paragraph 11 and discussed in paragraph 12 the applicant proved the immovable property to be prima facie and legally susceptible to be declared specially executable and a writ of execution to be issued as envisaged in terms of Rule 46A(2) of the Uniform Rules of Court.

5. It must be understood that the Rule 46A application was entertained because the delay that the applicants caused in the finalisation of the litigation was the reason that the application was entertained; not the merits of the rescission application. The merits of the rescission application were not entertained.

6. The court was now tasked to establish whether the immovable property

which the execution creditor intended to execute against, is a primary residence and consider an alternative means by the judgment

debtor of satisfying the judgment debt, other than execution against the primary residence. Further the court had to consider all relevant factors that execution against property is warranted. All this was done a quo. There were not any other defences before court.

7. The words in the Hlumisa Technologies and another v Nedbank Ltd and others 2020 (4) 553 ECD sounds louder now and more true:

[17] As eloquently put by Mudau J, automatic suspension of any judgment or order of court upon delivery of rescission application by any person could result in an absurd situation. That is, meritless rescission applications can easily be resorted to, to frustrate the execution of a judgment or an order of court.

[18] I could not agree more with the conclusion and reasoning of Legodi JP in Pine Glow and it serves no purpose to restate same, which I shall adopt.

8. The best just and equitable order that could have been made in the

circumstances was to protect the applicants from eviction from the immovable property if it is their primary residence and to spare them costs whilst serving the administration of justice.

9. The vital question is whether sufficient ground(s) exist for another

court to interfere with the discretion exercised by the court in making the order under Rule 46A. There are two aspects here; the

grounds and the test for interference on appeal.

THE GROUNDS

[4] These are the succinct grounds:

1. The Rule 46A application should not have been entertained in light of the pending rescission application;

2. The court erred in finding that the rescission application was a delaying tactic; and

3. The court erred in ruling on an application, the rescission application, that was not before it.

[5] The ruling of the court that the rescission application was a delaying tactic and the granting of the Rule 46A order under the specific circumstances is thus under appeal. The court did not rule on the veracity of the rescission application but found that the reason for the delay was unsound and that the reason for the rescission application could not have been established if the essential document was not available; the application for rescission could not exist.

[6] The rescission application has been denied. This ground of appeal has become moot. The validity of the Rule 46A order is not disputed. The elements and circumstances on which it was based is common cause. The question is now whether a court will interfere on appeal at this stage and if the remedy of a stay of execution of the order is not the appropriate course and not an appeal?

[7] The answer is that an appeal will be moot and that the applicants must refer to the more appropriate remedies in law; remedies that follow after a proper and legal Rule 46A order was granted. If I am

wrong; the test to be applied in an Application for Leave to Appeal comes to the fore.

APPLICATION FOR LEAVE TO APPEAL

[8] The right to appeal is, among others, managed by the application for leave to appeal. It may not be abused but the hurdle of an application for leave to appeal may never become an obstacle to justice in the post-constitutional era. The Superior Courts Act 10 of 2013 regulates the adjudication for leave to appeal specifically. The interpretation of the legislative test evolved in case law.

[9] Historically the rule was: “In that reasonable prospects exists that another Court, sitting as the Court of Appeal, would come to different findings and conclusions on the facts and the law.”[3] It is being worded differently in the Superior Courts Act 10 >of 2013[4] per section 17(1) to read:

(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 on appeal does not fall within the ambit of section 16(2)(a); and

(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.

(2) (a) Leave to appeal may be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or judges of the same court or Division.

[10] The words “would” and “only” caused some to opinion that the bar for granting leave to appeal has been raised.[5] All it says is that the matter must be pondered in depth and with careful judicial introspection. It did not raise the bar because access to justice is access to justice. There must be a sound, rational basis for the conclusion that there are prospects of success on appeal and another court would come to another conclusion.

[11] In Shinga v The State & another (Society of Advocates (Pietermaritzburg Bar intervening as Amicus Curiae); S v O’Connell & others 2007 (2) SACR 28 (CC) at [53] it was held that applications for leave to appeal is a judicial task of some delicacy and expertise. This task requires a careful analysis of both the facts and the law that provided the basis for the judgement. Presiding officers should approach the question whether another court may reach a different conclusion with “intellectual humility and integrity, neither over-zealously endorsing the ineluctable correctness of the decision that has been reached, nor overanxiously referring decisions that are indubitably correct to an appellate Court.”

[12] In S v Smith 2012 (1) SACR 567 (SCA) the court laid down the approach to an application for leave to appeal as follows:

What the test of reasonable prospects of success postulates is 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 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 words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[13] With reference to the Smith-case Schippers AJA in MEC Health, Eastern Cape v Mkhitha (2016) ZASCA 176 (25 November 2016); JDR 2214 SCA noted that:

[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper

grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable

case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect

of success on appeal.

[18] In this case the requirements of section 17(1)(a) of the Superior Courts Act were simply not met. The uncontradicted evidence is that the medical staff at BOH were negligent and caused the plaintiff to suffer harm. The special plea was plainly unmeritorious. Leave to appeal should have been refused.

[14] In Mostert and others v Nash and another 2018 (5) SA 409 (SCA) it was confirmed that:

[25] While courts are entitled to prevent any abuse of process, it is a power that should be sparingly exercised. The starting point is the constitutional guarantee of the right of access to courts in s 34 of the Constitution. That right is of cardinal importance for the adjudication of justiciable disputes. But, where the procedures of the court are being used to achieve purposes for which they are not intended, that will amount to an abuse of process.

CONCLUSION

[15] On the evidence before the court a quo the disregard for law and process caused justice to be delayed and denied hence the Rule 46A order.

[16] Due to a haphazard placing and application of the law, the litigation has now overtaken the remedies sought and the appeal on the rescission issue has become moot.

[17] Another court will not interfere with the Rule 46A order because it was granted on sound and legal grounds with much empathy for the case of the applicants.

[18] The applicants for leave to appeal has other remedies to their disposal.

[19] The application for leave to appeal stands to be dismissed.

[20] ORDER

The application for leave to appeal is dismissed with costs on a scale as between attorney and client.

M OPPERMAN, J

APPEARANCES

Counsel for the Applicants

Advocate L Zazeraj

C/O Bredenkamp Attorneys

15 Dauphine Street

Bayswater

BLOEMFONTEIN

Email:cobus@bredenkamp.lawyer

Counsel for Respondent

Advocate B H Steyn

Leahy Attorneys

Waterkloof

C/O McIntyre Van der Post

12 Barnes Street

Westdene

[Ref: AAT269/Elene)

Email: christiaan@mcintyre.co.za

[1] The 6th respondent did not join the litigation in casu.

[2] Case 3612/2019: Acting Judge H Murray, FA 3 page 87-88 of the Court Bundle. Hereafter referred to as “The Murray- Order”.

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

[4] See Proclamation R. 36 of 2013 dated 22 August 2013 (Government Gazette 36774).

[5] K2011148986 (South Africa) (Pty) Ltd v State Information Technology Agency (SOC) Ltd 2021 JDR 0273 (FB).