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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)         REPORTABLE: YES

(2)         OF INTEREST TO OTHER JUDGES: YES

(3)         REVISED: NO

Date:     2 December 2021

CASE NO: 43914/17

 

In the matter between:

PREVANCE BONDS (PTY) LIMITED                                                        APPLICANT

and

VOLTEX (PTY) LIMITED                                                                            RESPONDENT

In re:

VOLTEX (PTY) LIMITED                                                                           APPLICANT

and

FIRST STRUT (RF) LIMITED (IN LIQUIDATION)                                  1^ST RESPONDENT

THE MASTER OF THE HIGH COURT, PRETORIA                                 2^ND RESPONDENT

PREVANCE BONDS (PTY) LIMITED                                                        3^RD RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

Van der Schyff J

 

Introduction

[1]   This is an application for leave to appeal against the order and judgment handed down on 5 October 2021. The parties are referred to as in the main application.

 

[2]   In the main application, the court was called upon to decide whether ‘an application for credit incorporating a cession of book debts’ could be rectified after the winding-up of the company whose book debts were so ceded. After analysing the existing case law and literature on the legal question, I found that such rectification is allowed in law. I did not follow an earlier decision handed down in Nedbank v Chance[1] in coming to this decision. The latter case was, in passing, referred to with approval in Standard Bank of South Africa Ltd v Strydom,[2] although the facts of that case did not necessitate a consideration of the issue at hand. Due to the existence of conflicting judgments, I am of the view that legal certainty must be obtained regarding the legal question that underpinned the main application. This constitutes a compelling reason for the appeal to be heard.

 

[3]   The third respondent submits that I misdirected myself in finding that the applicant in the main application made a case on the facts for the rectification of the agreement. The third respondent contends that I dealt with an issue that I was not seized with and which was not argued before me, because on the day of the hearing, the applicant sought the matter to be referred to oral evidence. I disagree with the submission that the audi et alteram principle was not enforced. As stated in the judgment, the applicant in the main application indicated that it sought a referral to oral evidence because it was of the view that such a referral must be sought when the hearing commences. The third respondent opposed a referral to oral evidence and can hardly now complain because the matter was not so referred. Although counsel did not, on the day, address the factual question in detail, the issue was addressed in the written heads of argument filed on CaseLine.

 

[4]   The third respondent submits that I erred in holding that the liquidator, who represents the insolvent company, is the only party who can contest the applicant’s averments regarding the meeting of minds when the contract was concluded, and that I erroneously avoided determining the evidentiary sufficiency of the applicant’s case concerning the common intent of the parties. However, the third respondent does not aver that I erred in my conception of the facts underpinning the applicant’s application, or in considering that no challenge has been raised to the quantification of the applicant’s claims but that it was only the applicant’s position as a secured creditor that was disputed.  The third respondent likewise does not submit that I erred when I stated that other remedies were available if it wanted to contest the validity of the applicant’s claim. I am, however, of the view that the effect of a liquidator’s failure to oppose applications of this nature is an issue that requires clarification. I am thus not inclined to limit the issues on appeal as requested by the applicant.

ORDER

In the result, the following order is made:

1.    Leave to appeal is granted to the Supreme Court of Appeal.

2.    The costs of this application are costs in the appeal.

 

E van der Schyff

Judge of the High Court

 

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 2 December 2021.

Counsel for the applicant/third respondent: Adv. J. Peter SC                 

Instructed by:                                               Fluxmans Inc.

Counsel for the respondent/applicant:         Adv. B. M. Gilbert      

Instructed by:                                               Reitz Attorneys

Date of the hearing:                                     18 November 2021

Date of judgment:                                         2 December 2021

                                                                           

 

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