---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

 

 CASE NO: 4643/2021

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

Date:11/08/2023

 

In the matter between:
MARTA INVESTMENTS CC	1ST APPLICANT
(Registration No: 2009[…])
MARY-JANE THABO RAMUSI	2ND APPLICANT
(ID No: 8[…])
and
MERCEDES-BENZ FINANCE AND INSURANCE	RESPONDENT
(A DIVISION OF MERCEDES-BENZ FINANCIAL
SERVICES SOUTH AFRICA(PTY)LTD)
In Re:
MERCEDES-BENZ FINANCE AND INSURANCE	APPLICANT
(A DIVISION OF MERCEDES-BENZ FINANCIAL
SERVICES SOUTH AFRICA(PTY)LTD)
and
MARTA INVESTMENTS CC	1st RESPONDENT
(Registration No: 2009[…])
MARY-JANE THABO RAMUSI	2nd RESPONDENT
(ID No: 8[…])

 

LEAVE TO APPEAL JUDGMENT

 

PILLAY AJ

 

[1]      The Applicants (Respondents in the Summary Judgment Application) seeks leave to Appeal the whole of the Judgment and Order delivered by this Court on 10 November 2022. The matter was set for hearing on 14 July 2023 at 09h00AM. The notice of set down in terms of Rule 49(1)(d)[1] were served on both parties. The parties filed heads of argument in respect of the matter by the end of June 2023.

 

[2]      On 14 July 2023 around 08H30AM, Mr Phasha informed my secretary that he would not be available at 09H00AM, as scheduled, due to a personal emergency. He would be available an hour later, at 10H00AM. 

 

[3]      As arrangements were made for this time, since I was attending at another Court an alternative suggestion to him was for the matter to stand down till 13H00PM. He was not available at 13H00PM as he was travelling to Cape Town that afternoon. At 09H00AM, Advocate Bresler appearing for the Respondent, indicated that she had no knowledge of Mr. Phasha’s predicament, as she had received no communication from him. I informed her that several attempts to contact Mr Phasha after the initial two calls, were unsuccessful as Mr Phasha’s phone was not being answered. I enquired as to how the matter should be dealt with, in light of the fact that he was absent and there being no appearance on behalf of the Applicants.

 

[4]      She drew the Court’s attention to the Limpopo Practise Directive^[2]  wherein Makgoba JP stated the following:

 

“3. On the date of hearing the Judge shall grant or dismiss the application for leave to appeal even in the absence of either the Applicant’s legal representative or the Respondent’s legal representative.

 

There shall be no postponements or striking of the application from the roll”

 

She indicated that based on the aforesaid, applications for leave to Appeal were to be attended to and not postponed sine die or removed from the Roll. She highlighted the fact that both parties were aware of the date and the matter proceeding at 09H00AM, the Applicants should have made the necessary arrangements to attend Court to move the application for leave to Appeal.

 

[5]      She indicated that she held instructions to proceed with the argument in respect of the application in light of the fact that the attempts to reach Mr Phasha was unsuccessful and that both parties were limited to their heads of argument concerning the merit of this application which was already filed and before the Court.

 

[6]      She highlighted that this process was delaying the Respondent in reaching finality in respect of this claim and the Respondent was prejudiced by this unknown delay on the part of the Applicants.

 

[7]      Having heard the argument, and considering the aforesaid Practise Directive with specific reference to the fact that what was filed as written Heads of Argument in support of the application was before the Court, I granted the request of the Respondent and proceeded with the application for Leave to Appeal.

 

[8]      The Applicants sought leave to Appeal on the following grounds as set out in the application for leave to Appeal and were amplified in the written Heads of Argument.

 

[9]      In brief, the Applicant raises the following grounds in support of the said application for leave to Appeal;

 

9.1.         The Honourable. Acting Judge erred by finding that the Applicants did not show any bona fide defence to the Respondent’s claim.

 

9.2.         The Honourable Acting Judge erred by finding that the 1^st Applicant should have attached proof of payments to the opposing affidavit to support its version that it had been paying the monthly instalments to the Respondents.

 

9.3.         The Honourable Acting Judge erred by finding that the relief sought in the Summary judgment application did not affect the 2^nd Applicant but only the 1^st Applicant as the said Judgment has disposed of the merits of the action.

 

9.4.         The Honourable Acting Judge erred by finding that the 2^nd Applicant did not need to obtain the written consent of her husband to bind the joint estate when the 2^nd Applicant was signing the suretyship.

 

[10]    Section 17 of the Superior Courts Act[3] regulates applications for leave to Appeal from a decision of a High Court. It provides as follows:

 

 ‘(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.'

 

[11]    In Ramakatsa and Others v African National Congress and Another[4] Dlodlo JA placed the earlier authorities in perspective. He said:

 

“[10] … I am mindful of the decisions at high court level debating whether the use of the word ‘would’ as opposed to ‘could’ possibly means that the threshold for granting the appeal has been raised. If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test of reasonable prospects of success postulates 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 other words, the appellants in this matter need to convince this Court on proper grounds that they have prospects of success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects of success must be shown to exist.”

 

[12]    Regard was had to what was indicated by Schippers JA in MEC for Health, Eastern Cape v Mkhitha and Another:[5]

 

‘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.’

 

[13]    When considering this application, I took note of the respective Heads of Arguments, authorities, and submissions of both parties in respect of the Applicant’s application for leave to Appeal, and considered the authorities referred to by both parties to establish if indeed there is a reasonable prospect of success on Appeal.

 

[14]    The grounds as raised by the Applicants in respect of the application for leave to Appeal in respect of the matter have been addressed in my Judgment and as highlighted by the Respondent are without merit. There was no material bona fide defence raised in rebuttal of the Summary Judgment application by the 1^st Applicant.

 

[15]    The First Applicant has to date not ventilated the crisp issue pertaining to its indebtedness, concerning the amount it is of the opinion it owes. It was not necessary to annex receipts as indicated by the Applicants in the application for leave to Appeal. That was not sought by Court, but it was relevant under oath to indicate dates and amounts of payments made so that the Court could properly be informed of the bona fide defence raised to the Summary Judgment application. It was relevant to testify about the amount owing with dates and amounts that the First Applicant had paid in respect of this vehicle. It is trite that bold allegations made in Plea and Answering Affidavits do not promote bona fides in respect of the defence raised.

 

[16]    The Order granted is only in respect of the return of the motor vehicle, which is not disputed to belong to the Respondent. Whether the 2^nd Applicant will be liable for any damages suffered by the Respondent will only feature following the sale of the motor vehicle. The defence raised that the 2^nd Applicant was married in community of property and not authorised to contract on behalf of the First Respondent wherein she is the Director was also ventilated in my Judgment and as highlighted by the Respondent, an argument without merit.

 

[17]    Having considered the submissions and the authorities relied upon, I am not persuaded that the Applicants met the threshold required for the granting of leave to Appeal, namely that the Appeal would have a reasonable prospect of success.

 

[18]    Consequently, the application for leave to Appeal is dismissed with costs.

 

Pillay AJ

Acting Judge of the High Court

Limpopo Division, Polokwane

 

APPEARANCES:

 

HEARD ON:	14 July 2023
JUDGMENT DELIVERED ON:	11 August 2023 . This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time for hand-down of the judgment is deemed to be 11 August 2023 at 16:00
FOR THE APPLICANT:	Mr P F Phasha
	info@phasha.co.za
	admin@phasha.co.za
INSTRUCTED BY:	Phokoane Phasha Attorneys
FOR THE RESPONDENT:	Adv M Bresler
	mariannebresler@gmail.com
INSTRUCTED BY:	Hammond Pole Majola INC
	domw@hammondpole.co.za

 

---

---