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Visser and Another v ASAPI 1046 CC t/a PFC Durbanville and Others (A420/2010) [2011] ZAWCHC 194 (1 April 2011)

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JUDGMENT

BOZALEK. J:

The respondents in the appeal, which was heard by us on 25 February 2011, now apply for leave to appeal to the Supreme Court of Appeal against our judgment which held that summary judgment was incorrectly given against the second appellant, who was the third defendant in the Magistrate's Court, and which judgment set that summary judgment aside with leave being granted to the second appellant to defend the action in the Magistrate's court. I shall continue to refer to the parties as they were in the appeal.

The first question is whether our judgment is in fact appealable given that no final judgment has been made in the lis between the respondents and the second appellant in the Magistrate's Court. The answer appears to be that a right of appeal does lie since this court's order had the effect of a final judgment in that it reversed what was the final judgment in favour of the respondents in the Magistrate's Court.

Counsel for the respondents has also drawn to our attention the case of Narain Singh v Singh & Another ALL SA 2009 (2) 239 (SCA) where an appeal was entertained and dealt with by the Supreme Court of Appeal in circumstances which were on all fours with those in this matter. The question was not decided or addressed in that matter but it appears that the Supreme Court of Appeal took it for granted that an appeal lay to it in such circumstances. In any event, I am happy to assume in favour of the respondents that they have a right of appeal against our judgment to the Supreme Court of Appeal.

The remaining question is whether the appellants have reasonable prospects of success in an appeal to the Supreme

Court of Appeal. The facts of this matter were fully set out in the judgment on appeal, as was this court's reasoning. I do not propose to re-traverse that ground. It suffices to say that the court of appeal will in essence be called upon to decide whether, in the light, inter alia, of the second appellant's affidavit opposing summary judgment, she should not be afforded an opportunity to ventilate her defence of having concluded a loan agreement and more particularly a suretyship agreement under duress or whether judgment should be granted against her forthwith. Put differently, the court of appeal will be called upon to decide whether the second appellant's opposing affidavit fully discloses the nature and grounds of a defence which is both bona fide and good in law.

I do not consider it improbable that a court of appeal may consider that greater detail of the facts and circumstances of the defence should have been disclosed by the second appellant in her closing affidavit However, in my view, there are no reasonable prospects of that court concluding that she fell so short of the standard of disclosure required that what has been described as the "drastic remedy" of summary judgment should succeed against her.

In the result, I would refuse the application for leave to appeal with costs.

GOLIATH, J: I agree.

GOLIATH, J

BOZALEK. J: It is so ordered.

BOZALEK. J

/bw