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[2020] ZAGPJHC 334
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Dube and Another v Off the Grid CC and Others (2019/29442) [2020] ZAGPJHC 334 (28 August 2020)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
:
2019/29442
DATE
:
28
th
August 2020
In
the matter between:
DUBE
,
TAKANDU
First Applicant
DUBE
,
TSITSI
Second Applicant
and
OFF
THE GRID
CC
First Respondent
DANIEL
,
JENNIFER
MARGARET
Second Respondent
DANIEL
PROJECTS CC (In
Liquidation)
Third Respondent
EDUARDO
TODISCO ARCHITECTS & DESIGNS
Fourth Respondent
MORRISON
,
TERENCE ANDREW
Fifth Respondent
THE
MASTER OF THE HIGH COURT, JOHANNESBURG
Sixth Respondent
Coram:
Adams J
Heard
:
27 August 2020
Delivered:
28 August 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
system of the GLD
and by release to SAFLII. The date and time for hand-down is deemed
to be 12h00 on 28 August 2020.
Summary:
Application for leave to appeal against factual findings in opposed
motion court proceedings –
s 17(1)(a)(i)
of the
Superior Courts
Act 10 of 2013
– an appellant now faces a higher and a more
stringent threshold – application for leave to appeal refused
ORDER
(1)
The first and second applicants’
application for leave to appeal is dismissed with costs.
(2) The first and second applicants,
jointly and severally, the one paying the other to be absolved, shall
pay the first and second
respondents’ costs of this application
for leave to appeal, including any wasted costs (if any) occasioned
by the postponement
of the application for leave to appeal on
previous occasions.
JUDGMENT
[LEAVE TO APPEAL]
Adams
J:
[1].
I shall refer
to the parties as referred to in the original opposed urgent
application. The first and second applicants (‘the
applicants’)
are the applicants in this application for leave to appeal and the
first and second respondents (‘the
respondents’) are the
respondents herein. The applicants apply for leave to appeal
against
the whole of the order and the judgment, as well as the reasons
therefor, which I granted on the 7
th
of April 2020, in terms of which I had granted judgment in favour of
the first and second respondents against the first and second
applicants for payment of the amount of the
R115 535.45,
together with interest thereon and costs of suit.
[2].
The application for leave to
appeal is against my factual and legal findings that, after the
debatement of the first respondent’s
statement of account, the
applicants are liable to the first respondent in an amount of
R115 535.45 despite the fact that
there was evidence in the papers before me that the first respondent
may have been deregistered
during 2014. This then means, so it was
contended on behalf of the applicants, that the first respondent did
not have the necessary
locus standi
to enter into the agreement on which the first respondent’s
claim was based. Moreover, so the applicants submitted, the first
respondent did not have the necessary
locus
standi
to institute the ‘counterclaim’
for payment from the respondents of the said sum.
[3].
The main difficulty with the
applicants’ case in this application for leave to appeal is
that it is based on issues which
were not before the court when the
matter was initially adjudicated. In fact, in their heads of argument
the applicants make the
submission that the first respondent’s
lack of
locus standi
is based on a ‘
Windeed
Search’ dated the 13
th
of July 2020. This is fatal to the applicants cause. In any event, I
reiterate that the first respondent’s
locus
standi
was not an issue in the
proceedings in the court
a quo
.
The applicants were the ones who launched an application against the
first respondent, which implies that they accepted that the
first
respondent existed as a legal entity. The first respondent joined
issue with the applicants on that aspect, which, in turn,
means that
the first respondent’s
locus
standi
was common cause in the
proceedings in the court
a quo
.
There is therefore no factual or legal basis on which the applicants
can ground the submissions made in this application for leave
to
appeal.
[4].
All other issues raised by the first and second
applicants in this application for leave to appeal have been dealt
with by me in
my original judgment and it is not necessary to repeat
those in full.
Suffice to say that when
the parties came before me in the urgent court initially, it was
indicated that the parties disagree on
the amount due to the first
respondent by the applicants. I indicated to the parties that it was
most undesirable that the dispute
between them be decided upon in the
urgent court. I directed that the applicants be given access to their
newly built house and
I would subsequently adjudicate the dispute
between them. Neither of the parties had any objection to such
directive and an order
to that effect was issued.
[5].
The traditional test in deciding whether leave to
appeal should be granted was whether there is a reasonable prospect
that another
court may come to a different conclusion to that reached
by me in my judgment. This approach has now been codified in
s
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
, which came into
operation on the 23
rd
of August 2013, and which provides
that leave to appeal may only be given where the judge concerned is
of the opinion that ‘
the appeal would have a reasonable
prospect of success’.
[6].
In
Mont Chevaux Trust v Tina Goosen,
LCC
14R/2014 (unreported), the Land Claims Court held (in an
obiter
dictum
) that the wording of this subsection raised the bar of the
test that now has to be applied to the merits of the proposed appeal
before leave should be granted. I agree with that view, which has
also now been endorsed by the SCA in an unreported judgment in
Notshokovu v S,
case no: 157/2015
[2016] ZASCA 112
(7
September 2016). In that matter the SCA remarked that an appellant
now faces a higher and a more stringent threshold, in terms
of the
Superior Court Act 10 of 2013 compared to that under the provisions
of the repealed Supreme Court Act 59 of 1959. The applicable
legal
principle as enunciated in
Mont Chevaux
has also now been
endorsed by the Full Court of the Gauteng Division of the High Court
in Pretoria in
Acting National Director of Public Prosecutions and
Others v Democratic Alliance In Re: Democratic Alliance v Acting
National Director
of Public Prosecutions and Others
(19577/09)
[2016] ZAGPPHC 489 (24 June 2016).
[7].
I am not persuaded that the
issues raised by the first and second applicants in their application
for leave to appeal are issues
in respect of which another court is
likely to reach different conclusions to those reached by me. I am
therefore of the view that
there are no reasonable prospects of
another court coming to different conclusions, be they on aspects of
fact or law, to the ones
reached by us. The appeal does not, in my
judgment, have a reasonable prospect of success.
[8].
Leave to appeal should therefore
be refused.
Order
In the
circumstances, the following order is made:
(1)
The first and second applicants’
application for leave to appeal is dismissed with costs.
(2) The first and second applicants,
jointly and severally, the one paying the other to be absolved, shall
pay the first and second
respondents’ costs of this application
for leave to appeal, including any wasted costs (if any) occasioned
by the postponement
of the application for leave to appeal on
previous occasions.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD ON:
27
th
August 2020
JUDGMENT DATE:
28
th
August 2020
FOR THE APPLICANTS:
Adv Melato Makhubedu
INSTRUCTED BY:
F M Setati Attorney
FOR THE FIRST AND
SECOND RESPONDENTS:
Ms K Jordaan
INSTRUCTED BY:
K
Jordaan & Associates Incorporated
FOR THE THIRD TO
SIXTH RESPONDENTS:
No appearance
INSTRUCTED BY:
No
appearance