Lindicento Proprietary Limited v Lakeside City Trading 286 (Pty) Ltd
| Jurisdiction | South Africa |
| Judge | Maumela J |
| Judgment Date | 14 September 2020 |
| Docket Number | 31459/2018 |
| Hearing Date | 20 May 2020 |
| Court | North Gauteng High Court, Pretoria |
| Citation | 2020 JDR 1999 (GP) |
Maumela J:
This is an application for leave to appeal. It fell to be heard in the midst of the Covid 19 pandemonium. Efforts to pursue it via a virtual mode did not come to fruition, hence an agreement
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among the parties to rather file heads electronically.
For purposes of these proceedings, the parties that where the Respondent in the case against which leave to appeal is sought to be brought, shall be referred to as the First to Fourth Applicant. The party that was referred to as the Applicant shall be referred to as the Respondent in these proceedings.
Section 17(1) of the Superior Courts Act, Act 10 of 2013, ("the Superior Courts Act") regulates applications for leave to appeal and it provides as follows:
17 (1). Leave to appeal may only be given where the judge or judges concerned are of the opinion that-
the appeal would have a reasonable prospect of success; or
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 should 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.
The test which applied previously in applications for leave to appeal was whether reasonable prospects exist which indicate that another court may come to a different conclusion. The current test had the effect that the threshold for this consideration has been raised. In the case of Nannen and Others v Momentum and Others [1] ; Hughes J. stated the following: "What emerges from section 17 (1) is that the threshold to grant a party leave to appeal has been raised. It is now only granted in the circumstances set out and is deduced from the words 'only' used in the said section. See The Mont Chevaux Trust v Tina Goosen & 18 Others [2] , at para [6], Bertelsmann J held as follows: "It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in
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the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others [3] . The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose, judgment is sought to be appealed against."
GROUNDS FOR LEAVE TO APPEAL.
The applicants cited the following grounds for the application for leave to appeal:
First Ground.
That whereas in paragraphs 39 to 41 of the judgment, a point in limine entailing a dispute of fact is alluded to, the Court failed to deal with or rule on the point in limine.
That the Court erred in deciding an application, on motion proceedings, on the version of the Applicant where it should have applied the well-known Plascon Evans rule. It is argued that the Court ought to have concluded that there were, on a significant number of relevant aspects, fundamental and deep factual disputes which were irresolvable on the papers, and on that basis, the matter should have been decided on the version of the Respondents.
That the Court erred in granting relief to the Respondent because on the facts, as alleged by the Applicant itself, the ultimate purpose behind the transfer of the property, was to defraud the creditors of the Fourth Applicant. It is submitted that on the Respondent 's version, the transaction therefore was one in fraudam creditorum. The Applicant holds the view that consequently, by virtue of the doctrine of ex turpi causa, the Court ought not to have granted any relief, because the matter was tainted with fraud according to the Respondent itself. It points out that it was not fraud with reference to the Applicant, but fraud with reference to the creditors of the Fourth Applicant. The Applicant contends that on that basis, the Applicant ought to have been found to be non-suited.
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The First Applicant contends that the Court ought to have held that the mother of the Fourth Applicant, Ms. Veronica Samuels, was not at arm's length appointed as a director of the Applicant. It argues that the Court should have found on the facts that as between the Fourth Applicant and her mother, that the Fourth Applicant is the person retaining authority to act on behalf of the company. The Applicant, and the mother of the Fourth Applicant were simply artificially appointed on papers as directors, without the mother of the Fourth Applicant really becoming an independent objective and arm's length directors.
The Applicant argued further that the Court should have found that the appointment of the mother of the Fourth Applicant was simply that she acted as a puppet or a facade for the Fourth Applicant so that the latter, notwith-standing the fact that her mother was on paper reflected as a director, retained the authority to act on behalf of the company. The appointment of the mother was only fictional.
According to the Applicant, it is on that basis that the Court should have held that the actions of the Fourth Applicant represented actions for and on behalf of the company and that there was consequently a representation made to the First and Second Applicants, by both the First Applicant, the Fourth Applicant and her mother that there was ostensible authority to represent the Applicant in the transactions and the signing of the documents which culminated into the transfer of the property into the name of the First Applicant.
The First Applicant contends further that in addition, and by virtue of the representation made to the First and Second Applicants, namely that the Fourth Applicant was authorised to act on behalf of the First Applicant. It is submitted that the First Applicant stands estopped and precluded in law from denying the fact that the person purporting to represent it, namely the Fourth Applicant, who appended the signature of her mother as if she was the director of the company, bound the Respondent
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and that the Respondent is consequently bound to the representations made on its behalf, and is not in law entitled to deny the absence of authority by the person purporting to represent it.
Second Ground.
The applicant points out that in paragraphs 28 to 33 of the judgment, the Court mentioned the considerations of accepting a supplementary affidavit. The Applicant contends that the Court did not deal with, or rule on the admission or otherwise of the supplementary affidavit. Applicant points out that in paragraph 35 to 38 of the judgment, a point in limine was raised in the supplementary affidavit. The point in limine was about the contention that the respondent failed to make a case out in the founding affidavit. The Applicant pointed out that it is only in the reply where the Respondent sought to make its case out. The applicant raised the issue that the Court did not deal with or rule on these points.
Third Ground.
The applicant pointed out that under paragraph 42 of the judgment, a point in limine concerning hearsay evidence is mentioned but it was not dealt with in the judgment.
Fourth Ground.
The Fourth ground of appeal mentioned by the applicant is about the fact that in paragraph 43 of the judgment, prescription was mentioned as a point in limine. Applicant makes the point that the Court again failed to deal with or rule on this point.
Fifth Ground.
According to the Applicant, the Fifth grounds of appeal is entailed under paragraph 44 of the judgment. It concerns the aspect of non-joinder of the Home Owner's association. In raising this point in limine, the Applicant pointed out that in the judgment, the Court failed to address this issue.
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Sixth Ground.
In paragraphs 45 to 47 of the judgment, the defence of undue influence was raised. The authorities of Karabus motors v Van Eck [4] and Slipknot Investments 777 (Pty) Ltd v Du Toit [5] were mentioned. These authorities hold in this regard, that it is a general rule of our law that if the fraud, which induces a contract, does not proceed from one of the parties, but from an independent third person, it will have no effect upon the contract. It has been held that the fraud must be the fraud of one of the parties or of a third party acting in collusion with, or as the agent of one of the parties.
In paragraph 68 of the judgment, this Court held: "Forgery of the signature of one Samuels preceded the transfer of the property in issue in this case. This forgery is not disputed. All the First Respondent submits is that it was not party to the commission of fraud and neither was it aware of the fraud. It argues that its title as against the property should remain unaffected because it neither participated in the commission of fraud nor had knowledge of it. However, no plausible explanation is advanced for the anomalies around signatures and the apparent lack of authority on the part of the person behind the generation of the Power of Attorney that facilitated the sale and transfer of the property. Neither is there a sound reason advanced for why the property could be sold without the knowledge and participation of its co-directors. The role of the late Sheriff in the entire matter where no liquidation was underway, is difficult to understand. The court finds that the sale and transfer of the property was preceded by commission of fraud."
The applicant argues that the court failed to take the following into account:
That the Fourth Applicant admits that she forged the signature of her mother, "Samuels", to enable the...
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