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[2021] ZAGPJHC 161
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IMC Academy (Pty) Ltd v The Galleria Conference Centre (Pty) Ltd (10037/2020) [2021] ZAGPJHC 161 (28 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case Number:
10037/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
Date: 28/05/2021
IMC ACADEMY (PTY)
LIMITED
Applicant/Respondent
and
THE GALLERIA
CONFERENCE
CENTRE (PTY)
LIMITED
Respondent/Appellant
APPLICATION FOR LEAVE
TO APPEAL - JUDGMENT
COETZEE AJ
[1]
The applicant and the respondent are referred to as in the
application.
[2]
The respondent during November 2020 served
an application for leave to appeal against the whole of the judgment
of 13 November 2020,
including the costs order, upon the applicant.
[3]
The application for leave to appeal contains the various grounds of
appeal.
[4]
The applicant opposes the application for leave to appeal.
[5]
Both parties filed heads of argument in support of and its opposition
to the application
for leave to appeal.
[6]
I have considered the application for leave to appeal, the heads of
argument and the
oral representations.
[7]
Section 17
of the
Superior Courts Act, No 10 of 2013
regulates an
application for leave to appeal from a decision of a High Court. It
reads as follows:
'17.
Leave to appeal.
—
(1) 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 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'.
[8]
The Court in
Mgezeni
Gasbat Nxumalo v the National Bargaining Council for the Chemical
Industry (NBCCI) and Others
[1]
conveniently summarised the approach to an application for leave to
appeal:
'The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in
s17(1)(a)(i)
are indicative of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that
there was a reasonable prospect
that another court might come to a different conclusion (see
Daantjie
Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and
Another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test to be
applied lightly – the Labour Appeal Court has recently had
occasion to
observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law (See the judgment by Davis, JA
in
Martin
and East (Pty) Ltd v NUM
(2014)
35
ILJ
2399
(LAC), and also
Kruger
v S
2014
(1) SACR 369
(SCA) and the ruling by Steenkamp, J in
Oasys
Innovations (Pty) Ltd v Henning and Another
(C
536/15, 6 November 2015) and also Seatlholo and Others v Chemical,
Energy, Paper, Printing, Wood and Allied Workers' Union and
Others
[2]
.'
[9]
I do not intend to deal with each of the grounds of appeal
separately.
[10]
The respondent has, except for the submission below, not raised
grounds other than those in the
hearing of the matter which matters
were addressed in the reasons for the judgment.
[11]
The respondent in the heads of argument raised the following new
ground for an appeal:
"At the very least
the terms and conditions of the agreement are in dispute and in the
circumstances the application should
not have been launched on motion
proceedings and could not have been determined on the papers".
In support of the submission
counsel for the respondent submitted
that the Court
mero moto
during argument had to raise the
dispute of fact and referred the matter to trial or for oral evidence
on the intention of the
parties. For that reason, counsel submits,
another Court would come to a different finding, presumably that the
matter be referred
for evidence or to trial.
[12]
Counsel did not rely upon any authority for the submission. I am not
persuaded by the submission.
It is trite that a party who believes
that there is a dispute of fact that cannot be resolved on the
papers, should as soon as
possible invoke its right to ask for the
matter to be referred to trial or for evidence on a defined point.
[13]
In my view after careful consideration of the respondent's stated
grounds for leave to appeal
and the oral submissions, there is
nothing that persuades me that any appeal would have a reasonable
prospect of success.
[14]
There are no other compelling reasons why leave to appeal should be
granted.
[15]
There is no reason why costs should not
follow the result.
[16]
It is ordered that:
[16.1] The
application for leave to appeal is dismissed.
[16.2] Respondent
(appellant) to pay applicant's costs
H S COETZEE
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION
OF THE HIGH COURT,
JOHANNESBURG
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties' legal representatives by email and by uploading it to the
electronic file of this matter on CaseLines. The date
for hand-down
is deemed to be 28 May 2021.
APPEARANCES
On behalf of Applicant
Counsel for the
Applicant:
Advocate
Richard Goslett
Instructed by:
Dewey Hertzberg Levy Inc
On behalf
Respondent:
Advocate V Vergano
Instructed
by:
MaCartney Attorneys
Date of Hearing:
17 February 2021
Date of
Judgment:
28 May 2021
[1]
JR1170
/2013 unreported
[2]
(2016)
37 ILJ 1485 (LC)