Avnit v First Rand Bank Ltd

The respondent, First Rand Bank trading as Wesbank (Wesbank), launched an application against David Samuel Avnit for payment of USD 3,655,389.97 based on a surety agreement where Avnit stood surety for Norse Gulfstream Ltd's indebtedness arising from a loan agreement. Wesbank had a mortgage bond over a Gulfstream Glll Jet aircraft owned by the principal debtor. Approximately 30 months after Avnit delivered his answering affidavit, Wesbank sought to file a replying affidavit, which Avnit opposed. Wesbank abandoned its attempt to file the replying affidavit, but Avnit then sought to introduce a supplementary affidavit which the High Court (Mailula J) refused to admit. The High Court granted judgment in favour of Wesbank in the full amount claimed. Mailula J refused leave to appeal. Two judges of the Supreme Court of Appeal also refused Avnit's application for leave to appeal. Avnit then applied to the President of the SCA under s 17(2)(f) of the Superior Courts Act 10 of 2013 to refer the decision for reconsideration.

• What constitutes 'exceptional circumstances' under s 17(2)(f) of the Superior Courts Act 10 of 2013 for the President of the SCA to refer a decision refusing leave to appeal to the court for reconsideration
• Whether the President of the SCA should exercise discretion to refer the matter for reconsideration where a judge refused to admit a supplementary affidavit and granted judgment in the full amount claimed
• Whether the circumstances alleged by the applicant constitute a failure of justice warranting intervention under s 17(2)(f)

The application to refer the decision to the court for reconsideration was dismissed with costs.

Section 17(2)(f) of the Superior Courts Act 10 of 2013 is not intended to afford disappointed litigants a further attempt to procure relief already refused, but is intended to enable the President of the SCA to deal with situations where injustice might result. The President must be satisfied that circumstances are truly exceptional before referring the considered view of two judges of the SCA to the court for reconsideration. 'Exceptional circumstances' must involve more than satisfying the requirements for special leave to appeal - the power is likely to be exercised only when the President believes that some matter of importance has possibly been overlooked or grave injustice will otherwise result. Applications that merely rehearse arguments already made, considered and rejected will not succeed unless strongly arguable that justice will be denied without the possibility of appeal. The overall interests of justice are the finally determinative feature in exercising this discretion.

The Court provided guidance on the interpretation of 'exceptional circumstances' drawing on jurisprudence from Norwich Union Life Insurance Society v Dobbs 1912 AD 395 and MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas 2002 (6) SA 150 (C), noting that: (1) 'exceptional circumstances' means something out of the ordinary, unusual, uncommon, rare or different; (2) the circumstances must arise out of or be incidental to the particular case; (3) their existence is a matter of fact not judicial discretion; (4) a strict rather than liberal interpretation should be applied; and (5) special circumstances must be carefully examined. The Court noted that the origin of s 17(2)(f) likely lies in the situation in Van der Walt v Metcash Trading Co Ltd 2002 (4) SA 317 (CC) where differently composed panels reached different conclusions on identical applications, though the provision is not confined to such situations. The Court also observed that a useful guide is provided by established jurisprudence on special leave to appeal, requiring substantial points of law, great public importance, or demonstration that grave injustice may result without leave.

This is the first Supreme Court of Appeal judgment interpreting and applying s 17(2)(f) of the Superior Courts Act 10 of 2013, a new provision vesting the President of the SCA with power to refer decisions refusing leave to appeal to the court for reconsideration in exceptional circumstances. The judgment establishes the framework and approach for such applications, clarifying that the provision is not a further appeal opportunity for disappointed litigants but a narrow exceptional remedy. It provides important guidance on what constitutes 'exceptional circumstances' in this context, drawing on established jurisprudence regarding exceptional circumstances in other statutory contexts and special leave to appeal. The decision emphasizes that the provision requires a higher threshold than special leave to appeal and will be exercised sparingly.