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2023
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[2023] ZAGPJHC 780
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Dlwathi v Daytona (Pty) Ltd (51100/2021) [2023] ZAGPJHC 780 (10 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case No: 51100/2021
Date of
hearing: 8 June 2023
Judgment: 10 July 2023
IN
THE MATTER BETWEEN:
STEVE
DLWATHI
APPLICANT
(IN THE
APPLICATION
FOR LEAVE TO APPEAL)
and
DAYTONA
(PTY) LTD
RESPONDENT
(IN THE
APPLICATION
FOR LEAVE TO APPEAL)
IN
RE:
DAYTONA
(PTY) LTD
APPLICANT
and
STEVE
DLWATHI
RESPONDENT
IN
RE:
STEVE
DLWATHI
APPLICANT
and
HYDE
PARK AUTO (PTY) LTD t/a SANDTON AUTO
RESPONDENT
DAYTONA
(PTY) LTD
FIRST
RESPONDENT
SHAREHOLDERS
OF THE FIRST RESPONDENT
SECOND
RESPONDENT
ABRINA
3765 (PTY) LTD T/A BMW SANDTON
THIRD
RESPONDENT
SHAREHOLDERS
OF THE THIRD RESPONDENT
FOURTH
RESPONDENT
THE
SHERIFF OF THE COURT
FIFTH
RESPONDENT
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
Strijdom
AJ
1. This is an
application for leave to appeal the whole of my judgment to the Full
Court of this division, handed down on
28 March 2023.
2. The applicant’s
grounds of appeal are set out in the application for leave to appeal.
3.
Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
provides that leave to appeal
may only be granted where the judge or judges concerned are of the
opinion that the appeal would
have a reasonable prospect of success,
or if there is some compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration.
4. Each application
for leave to appeal must be decided on its own facts. Some examples
of what will be regarded as compelling
reasons have been identified.
They include:
(a) The substantial
importance of the case to the applicant or to both the applicant and
respondent.
(b) The decision
sought to be appealed against, involves an important question of law.
(c) The
administration of justice, either generally, or in the particular
case concerned, requires the appeal to be heard.
(d) An issue of
public importance, which will have an effect on future matters.
5. With the
enactment of
section 17
of the Act, the test has now obtained
statutory force and is to be applied, using the word ‘would’
in deciding whether
to grant leave. The test is: ‘would another
court come to a different decision.’
6.
In
the decision of
Mont
Chevaux Trust v Goosen and 18 Others,
[1]
the
Court held that the wording of the subsection raised the bar for the
test that has now to be applied to any application for
leave to
appeal.
7.
It
was decided in
Notshokovu
v S
[2]
that
an appellant faces a higher and stringent threshold in terms of the
Act.
8.
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.
[3]
9. In respect of
all the grounds of appeal raised by the applicant, my judgment deals
with the facts and the law as presented
by the parties and how the
Court arrived at each conclusion on the contentions raised by the
parties.
10. When the facts and
the law were examined, there is in my view no sound or rational basis
for the conclusion that another Court
would come to a different
decision. I am also of the view that there are no compelling reasons
why the appeal should be heard.
11. In the result the
application for leave to appeal is dismissed with costs.
STRIJDOM JJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
Appearances:
For
the Applicant: In person (Adv S Dlwathi)
For
the Respondent: Adv U. van Niekerk
Instructed
by: Alan Allschwang & Associates Inc.
[1]
2014
JDR 2325 (LCC)
[2]
(157/15)
[2016] ZA SCA 1112
(7 Sept 2016) at para 2 See also
Democratic Alliance v Acting Director of Public Prosecution and
Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016)
[3]
Van
Heerden v Cronwright & Others
1985 (2) SA 342
at 343 H