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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

(1)           REPORTABLE: YES/NO

(2)           OF INTEREST TO OTHER JUDGES: YES/NO

 

CASE No: 9267/2019

15/10/2019

 

In the matter between:

 

MOHAMED ADAM                                                  1^ST APPLICANT/ 2^ND DEFENDANT

FREDERICK HERSELMAN                                  2^ND APPLICANT/3^RD DEFENDANT

LLOYD LPI HOLDINGS (PTY) LTD                    3^RD APPLICANT/ 4^TH DEFENDANT

FIRST CLINIC PROPERTIES ONE LIMITED    4^TH APPLICANT/ 5^TH DEFENDANT

 

and

 
NEDBANK LIMITED                                               RESPONDENT/PLAINTIFF

 

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

 

MTATI AJ

[1]          This matter is brought before Court as an application for leave to appeal against an order of this Court delivered on 31^st July 2019. This application appears to have been filed with the Registrar of this Court on 8 August 2019 and the application self was heard on 3^rd October 2019.

The Respondent opposes the application for leave to appeal.

 

[2]          The Applicants aver that this Court erred in not taking into account the last paragraph of paragraph 1 of the affidavit resisting summary judgment which reads as follows:

"In any event, I as a former director of the first respondent/defendant do not have access to the documents of the business rescue practitioner and accordingly cannot comment on what may be owing or not by the first respondent/defendant."

[3]          I have provided all my reasons at arriving at my conclusions in granting summary judgment against the First to the Fourth Applicant. In particular, it was not disputed that the First to the Fourth Applicant stood surety for Louis Pasteur Investment Limited which has since been under business rescue. The Applicants opposition to the application for a summary judgment was solely argued on the premise that Louis Pasteur Investment was under business rescue and not that they stood surety. The defence now raised that they did not have access to the documents of the business rescue practitioner does not, in my view, raise a bona fide defence to the summary judgment application.

[4]          Having considered the application for leave to appeal, arguments for and against the application, I am not satisfied that another court might arrive at a different conclusion than that arrived at by this Court.

[4] As a result, I make the following order:

 

Order

 

Application for leave to appeal is dismissed with costs.

 

 

MTATI AJ

ACTING JUDGE OF THE HIGH COURT,

GAUTENG DIVISION, PRETORIA

 

Appearances:

On behalf of the Plaintiff                                         Adv C. Richard

Instructed Club Advocates Chambers

 

On behalf of the Defendant                                   Adv L. De Klerk

 

Appeal Heard on the 03^rd October 2019

Judgment handed down on the 15^th October 2019

 

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