REPUBLIC OF SOUTH AFRICA

,',

IN THE HIGH COURT OF SOUTH  AFRICA
GAUTENG  DIVISION, PRETORIA
                                                 DATE: 29 JULY 2016
CASE NO: 66933/2015
                                          REPORTABLE
OF INTEREST TO OTHER JUDGES
                              REVISED

In the matter between:

NEDBANK LIMITED

and

HERMANUS  PHILLIPUS KLOPPERS

APPLICANT

RESPONDENT

J U D G M E N T

MALI J

[1]      The  applicant  a financial  service  provider,  herein  seeks  an interim order to attach and seize four motor vehicles in the possession of the respondent pending finalisation of an action pending before this Court as well as a second action pending in the Randburg Magistrate's Court.

[2]      The basis of the applicant's case is that it has cancelled all four of the instalment sale agreements between the applicant and the respondent. The applicant's purpose for seeking the relief is for the safe keeping of the said vehicles.

[3]      The respondent has raised two points in limine, firstly that the  affidavit of the applicant's deponent is defective because the deponent stated in her founding affidavit that she is a major female and later stated he knows and understands... It is not disputed by the respondent that the said point in limine has not been raised in its answering affidavit. The said point in limine is only raised for the first time in the heads of argument.

[4]     The respondent relies on ABSA BANK LTD v  BOTHA  NO AND OTHERS  . The respondent's reliance on Absa's supra is misplaced because the case dealt with affidavits supporting summary judgment applications. Because of the nature of the summary judgment applications.

[5]	Having regard to the above the first point in limine must fail.

[6]        The second  point in limine  raised by the respondent  is that the  matter is lis pendens because the applicant on 20 October 2015 applied for summary judgment against the respondent. The  application  for summary judgment is based on the same cause  of  action  and seeks the return of the same vehicles sought for safe keeping in the present application.  The  application  was postponed.

[7]	It is trite  law that  in order to succeed  with  a plea of   lis  alibi pendens

four requirements have to be complied with, namely:-

•	Pending litigations;

•	Between the same parties or their privies;

•	Based on the same cause of action;

•	In respect of the same subject matter.

[8]	In NESTLE (SOUTH AFRICA) (PTY) LTD v MARS INC , it is held;

"The defence of lis alibi pendens share features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation.  Once  a suit   has  been  commenced  before  a  tribunal  that  is  competent to

adjudicate upon it, the suit must generally be brought to its conclusion before the tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally. 11

[9]	In  GEORGE	TALBOT	SPENCER	AND	OTHERS	v  XOLISA

KENNEDY   MEMANI   AND   OTHERS ,    Meyer  AJA   stated   the

following:

•	
11

• • To refuse to allow the objection of lis alibi pendens simply

because the plaintiffs in the action did not spell out the grounds upon which Memani and the trust rely in the dispute about which a declaration is sought would amount to an elevation of form over substance. The trial court will have to decide upon the very matters which the court a quo was asked to decide upon as far as the directorship of Memani is concerned. The pending earlier action and the later application involve the same parties........ There are compelling reasons why the /is which was first commenced should be the one to proceed. A decision of the application will not bring finality in the litigation between the parties but merely result in a piecemeal adjudication of the issues in dispute between them..... Furthermore  a
weighty   consideration   is   the   one   mentioned   by   Navsa   JA in

Socratous. This consideration is summarised as follows in the headnote  of that judgment:  ' South African  courts are under  severe

pressure due to congested court rolls 1 and the defence of lis pendens must  be allowed  to operate in order  to stem  unwarranted  proliferation
of litigation involving the same based  on  the  same  cause  of action and related  to the same subject-matter'."

[10]    The applicant does not dispute that there  are  pending  litigations between the applicant and the respondent. On the applicants own version it seeks interim relief because of the pending litigation in respect of the same cause of action.

[11]     The applicant's argument that the matter is not lis pendens is that  it seeks a different relief from what is sought in the summary judgment. The applicant submits that in the summary judgment the applicant seeks a final relief and in the present application it seeks an interim relief.

[12]      The applicant further referred the court to GELDENHUYS v KOTZE . The principle established in Geldenhuys is that the court has judicial discretion not to apply lis pendens based on the merits of the case. To state the obvious Geldenhuys was decided in a different time. As stated in George Talbot Spencer above, the weight consideration regarding the congestion of our courts rolls is a reality today. Even on application  of  Geldenhuys   supra  the  discretion  do  not  apply    lis
pendens should be cautiously exercised

[13]      Furthermore,  I find  nothing in law to the effect that despite  meeting  all the requirements of lis pendens, a difference in relief should be a consideration.

[14]	In the result the point in limine is upheld.

[15]	I therefore make the following order;

15.1	The application is dismissed with costs.

N.P. MALI JUDGE  OF THE  HIGH COURT

Counsel for the Applicant: Instructed by:

Adv. J P van den Berg VHI ATIORNEYS

Counsel for the Respondent: Instructed by:

Adv. J M  Prinsloo
STRAUSS DE WAAL ATIORNEYS

Date of Hearing: Date of Judgment:

19 April 2016
29 July 2016