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[2020] ZAGPJHC 153
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Mamulo Trading and Projects v Johannesburg Road Agency and Another (38169/2019) [2020] ZAGPJHC 153 (11 February 2020)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 38168/2019
In the
matter between:
MAMULO
TRADING AND
PROJECTS
Appellant
and
JOHANNESBURG
ROAD
AGENCY
First
Respondent
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY
Second
Respondent
SENYATSI J:
A: INTRODUCTION
[1]
This is an application for leave to appeal against the order handed
down by this Court on 15 November 2019, to the following
effect:
“
IT
IS ORDERED THAT:
(1)
The application is struck off the roll;
(2)
Applicant is to pay costs on attorney and client scale
”
[2] At
the hearing of the application, the Court was reminded that the
application concerns two matters that is case no: 2019/3816
and
2019/38169.
[3]
Both Counsel, Mr Langa and Mr Lesomo confirmed that the application
for leave to appeal was in respect of the orders in both
matters. The
facts and the relief sought were the same although the matters were
not consolidated into one.
[4] At
the hearing of the arguments, I asked both Counsel to address this
Court on whether or not the order striking the matter
from the roll
was a final judgment and whether such an order was appealable.
[5]
The leave to appeal application in the matter raised several grounds
totalling 22 in number. I will not deal with each ground
as these
averments are not reflected in my order handed down on 15 November
2019.
[6] Mr
Lesomo submitted that although generally speaking the order striking
the matter from the roll is not appealable, in the instant
case, the
Court should consider granting leave to appeal as it would be in the
interest of justice to do so.
[7] Mr
Lesomo furthermore submitted that the Court ought to have heard the
matter as the relief sought was regarding the arbitration
clause of
the agreement between the parties. He contended that the agreement
was not cancelled but terminated by the first Respondent.
He
furthermore argued that the order partially disposed of some of the
definitive rights of the Applicant. When he was invited
to point out
in the order where such definitive rights were dealt with, he could
not do so.
B.
BACKGROUND
[8]
The Applicant brought an urgent application on 12 November 2019 for
an order in the following terms:
(a) That the matter is
urgent, thus dispensing with the normal court rules regarding service
and filing of documents;
(b) That a dispute exists
between the parties on whether or not the Respondent is entitled to
terminate the agreement concluded
by the parties on 27 June 2018;
(c)
That the said dispute shall be dealt with in accordance with clause
17.1and 18 of the agreement concluded on 27 June 2018;
(d) That during the
existence of the dispute referred to, the Respondent must continue to
perform all its obligations under the
agreement concluded on 27 June
2018 and that the other part of the agreement provision of hygiene
and pest control, shall not be
suspended;
(e) Costs of the suit.
[9]
During the hearing of the applications, Counsel for the Respondents
submitted that the matter was not urgent and that it had
in fact been
struck off from the roll on 31 October 2019 by Siwendu J on the
grounds of lack of urgency.
[10]
Counsel for the applicant, Mr Lesomo, was invited to demonstrate to
court new facts rendering the matter urgent. Upon proper
consideration of the papers and the submission by Mr Lesumo, no new
facts could be established rendering the matter urgent.
[11]
As a consequence, the matter was struck form the roll with costs on
the attorney and client scale.
[12]
The applications were heard together and the applicants were both
represented by Mr Lesomo of Seokane Lesomo Incorporated.
C.
ISSUE FOR DETERMINATION
[13]
The issue for determination is whether an order striking off the
matter from the roll is appealable.
D.
THE LEGAL PRINCIPLES
[14]
The principles on the question whether application for leave to
appeal should be granted are regulated by Section 17 (1) of
the
Superior Courts Act 10 of 2013 (“the Act”).
[15]
The test is set out in Section 17(1) of the Act which provides as
follows:
“
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 against 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”
[16]
Prior to the promulgation of the Act, the test was whether there were
reasonable prospects that another court may come to a
different
conclusion.
[17]
In
Commissioner of Inland Revenue v Tuck
1989 (4) SA (T)
at 890, in applying the
test prior to the promulgation of the Act, Eloff DJP states the
following at page 890B:
“
It
seems to us that the point in issue is one which is of such a nature
that there is an adequate prospect that another Court may
come to a
different conclusion.”
This
test was applied in may subsequent cases.
[18]
The Act has now ushered a new threshold in terms of which the bar for
leave to appeal has been raised. In terms of Section
17(1), leave to
appeal would only be granted under the circumstances set out in the
section.
[19]
The
Mont Chevaux Trust v Tina Goosen &
18 Others
case was followed with
approval by DJP Ledwaba in
Acting
National Director of Public Prosecutions & Others v Democratic
Alliance (19577/09)[2016] ZAGPPHC
at
para 25 where the following is stated:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new
Act. The
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 Cron Wright & Others
1985 (2) SA 342
(T) at 343H.
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”.
[20]
In casu
the order sought to be appealed against neither dispose of any issue
at all nor is it final or definitive of the right of the parties.
The
order cannot therefore be appealed against.
[21]
In
Zweni v Minister of Law and Order
1993 (1)All SA (A)
Harms JA, in dealing
with principles to be applied to determine the applicability against
a judgement, held as follows at paragraph
[6]:
“
Leave
is granted if there are reasonable prospects of success. So much
trite. But, if the judgment or order sought to be
appealed against
does not dispose of all the issues between the parties the balance
of convenience must, in addition, favour
a piecemeal
consideration of the case. In other words, the test is then whether
the appeal if leave were given would lead to a
just and reasonable
prompt resolution of the real issue between the parties.”
[22]
It is also trite that decisions on preparatory or procedural
character ought not to be appealable (See
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA
839
(A) at 848).
[23]
The emphasis on the consideration of whether to grant leave to appeal
is now on whether an appeal will lead to expeditious
and
cost-effective determination of the main dispute between the parties
and as such contribute to its final solution
.
[24]
It is important to note that our Courts have held and this is now
trite that a judgment or order is a decision which, as a
general
principle, has three attributes, namely:
(a)
the
decision must be final in effect and not susceptible of alteration by
the Court of first instance;
(b)
it
must be definitive of the rights of the parties
(c)
it
must have the effect of disposing of at least a substantial portion
of the relief claimed in the main proceedings (See
Marsay
v Dilley
[1992] ZASCA 114
;
1992 (3) SA 944(A)962F).
[25] In the instant as
already stated, the order as it stands does not dispose of any issue
in the main application. It does not
venture into the merits of the
matter at all. The order simply strikes the matter from the roll. It
is therefore non-meritorious
for Mr Lesomo to submit that the order
in fact does dispose of some of the issues. He could not substantiate
ex facie
the order on the basis of his submission.
ABUSE
OF COURT PROCESS AND COSTS DE BONIS PROPRIIS
[26] It was submitted by
Mr Langa on behalf of the respondents that the applicants received a
fair warning by Siwendu J when the
matter was before her on 31
st
October 2019 about whether this matter was urgent.
[27]
Mr Lesomo denied during the hearing of this application for leave to
appeal that the urgency was dealt with by Siwendu J. He
argued that
the reason the application was struck from the roll was due to
non-compliance with the practice manual owing to short
notice given
to the respondents.
[28]
Mr Lesomo was confronted with the record of proceedings before
Siwendu J page 14 lines 8, 14 and 23 and page 15 lines 1 and
2 of the
record where the court clearly confronted him about the urgency. He
had no satisfactory response to offer safe to state
that Siwendu J
dealt with the merits of the application.
[29]
When the matter was before this court on 15 November 2019, Mr Lesomo
was again asked to demonstrate that the matter was urgent
and that
there were new facts justifying the urgency of the matter. There were
no such new facts on the papers before me then.
It was on that basis
that the matter was struck off the roll.
[30]
During the hearing of the leave to appeal application, Mr Lesomo kept
on insisting that this court erred by not hearing the
merits of the
main application.
[31]
The merits of the main application have not been canvased and this is
clear from the order striking the matter from the roll.
[32]
Mr Lesomo, as an officer of this court, did not perform
satisfactorily when asked whether Siwendu J canvased urgency. He
denied
an obvious fact that urgency was not canvassed when in fact
the matter was struck off the roll by Siwendu J on the grounds of
lack
of urgency. He attempted to mislead this court and as a
consequence called upon himself a punitive cost order de
bonis
propriis.
His conduct of this
application leaves much to be desired as an officer of this Court.
It is
not, justifiable that the Applicant must pay the legal costs out of
own pocket. Mr Lesomo’s conduct of the matter calls
for censor
by this court within an appropriate cost order against him.
[33]
The Court did not err in striking off the matter as the application
was for a simple declaratory order about an agreement.
[34]
The Applicant can still approach this Court through a normal
application to seek relief in terms of the notice of motion.
[35]
Having considered the arguments by both parties, I am not persuaded
that the order granted on the 15 November 2019 is appealable.
The
application must therefore fail.
[36]
ORDER
The
following order for leave to appeal is made:
(a)
The
application for leave to appeal is dismissed.
(b)
Mr
Lesomo of Seokane Lesomo Incorporated is ordered to pay the costs
de
bonis propriis
on the scale as between attorney and client.
__________________________________
SENYATSI J
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
Date leave to appeal
application heard: 6 February 2020
Date of Judgment: 11
February 2020
Appellants Counsel: Adv.
Lesomo
Instructed by: Seokane
Lesomo Inc
Respondents Counsel: Adv.
S. Langa
Instructed
by: Padi Incorporated Attorneys