Visser and Another v ASAPI 1046 CC t/a PFC Durbanville and Others (A420/2010) [2010] ZAWCHC 375 (1 April 2010)

Visser and Another v ASAPI 1046 CC t/a PFC Durbanville and Others (A420/2010) [2010] ZAWCHC 375 (1 April 2010)

The court held that its order setting aside summary judgment in favour of the respondents was appealable, as it reversed a final judgment in the Magistrate's Court. However, the court found that there were no reasonable prospects of success for the respondents in an appeal to the Supreme Court of Appeal. The second appellant's affidavit opposing summary judgment disclosed the nature and grounds of her defence, including allegations of duress in the loan and suretyship agreements. The court was not persuaded that the level of disclosure was so deficient as to justify the granting of summary judgment, given its drastic nature. Accordingly, the application for leave to appeal was refused...

Citation
[2010] ZAWCHC 375
Parties
Appellant: Andries Visser; Appellant: Yolande Visser; Respondent: ASAPI 1046 CC t/a PFC Durbanville; Respondent: Noeleen van den Berg; Respondent: Ereka Kotze
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 April 2010
Case Number
A420/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal After Summary Judgment Was Set Aside
Outcome
Application for leave to appeal refused with costs.
Judges
Bozalek, Goliath
Legal Topics
Summary Judgment, Leave to Appeal, Affidavit Disclosure, Suretyship Under Duress
Civil Procedure Summary Judgment Leave to Appeal Affidavit Disclosure Suretyship Under Duress

Case Brief

Summary, issues, holding and outcome

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Parties

Andries Visser

Appellant

Yolande Visser

Appellant

ASAPI 1046 CC t/a PFC Durbanville

Respondent

Noeleen van den Berg

Respondent

Ereka Kotze

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal After Summary Judgment Was Set Aside

Legal Issues

  1. 1 Is the judgment of the High Court appealable given that no final judgment has been made in the Magistrate's Court between the respondents and the second appellant.
  2. 2 Do the respondents have reasonable prospects of success in an appeal to the Supreme Court of Appeal against the setting aside of summary judgment.

Ratio Decidendi

The court held that its order setting aside summary judgment in favour of the respondents was appealable, as it reversed a final judgment in the Magistrate's Court. However, the court found that there were no reasonable prospects of success for the respondents in an appeal to the Supreme Court of Appeal. The second appellant's affidavit opposing summary judgment disclosed the nature and grounds of her defence, including allegations of duress in the loan and suretyship agreements. The court was not persuaded that the level of disclosure was so deficient as to justify the granting of summary judgment, given its drastic nature. Accordingly, the application for leave to appeal was refused...

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • The application for leave to appeal to the Supreme Court of Appeal is refused.
  • The respondents are ordered to pay the costs of the application.