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2022
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[2022] ZAECQBHC 46
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Nienaber N.O. and Others v Nelson Attorneys and Another (302/2017) [2022] ZAECQBHC 46 (22 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO. 302/2017
In
the matter between:
LINDA
NIENABER
N.O.
First Applicant/First Plaintiff
(in
her capacity as executrix
of
the estate of the late
Leonie
Logie Kelbrick)
ANTONIUS
GERHARDUS
VAN
DEN BERG
Second Applicant/Second Plaintiff
MARGIE
VAN DEN BERG
Third Applicant/Third Plaintiff
and
NELSON
ATTORNEYS
First Respondent/First Defendant
PIERRE
KITCHING ATTORNEYS
Second Respondent/Second Defendant
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
RUGUNANAN
J
[1]
The judgment and order of this court handed
down on 18 January 2022 in which the applicants’/plaintiffs’
claims were
dismissed with costs attracted an application for leave
to appeal to the full court of this division.
[2]
The second defendant is not a party to
these proceedings
[3]
The plaintiffs contend that wrongfulness as
an element of delictual liability was not in issue and the court
erred in concluding
otherwise.
[4]
In support of their application they rely
on
Oppelt v Head: Health, Department of
Health Provincial Administration: Western Cape
2016 (1) SA 323
(CC) at paragraph [53] where Molema AJ (writing for
the majority) states:
‘
In
the face of an admitted legal duty of care, the applicant needed to
show only that the legal duty was [negligently] breached.’
[5]
In argument, emphasis is laid on the fact
that the first defendant (
qua
Charles Nelson) did not dispute the duty of care (and its broadened
scope). Taken further, the plaintiffs contend that the court’s
misdirected inquiry into wrongfulness was at the expense of not fully
and adequately addressing the question of negligence relevant
to
which was the expert evidence by conveyancer Daryl Burman that had
been erroneously rejected.
[6]
In summary, the judgment indicates that the
court’s perception of the matter was that the scope of Nelson’s
duty of
care was ring-fenced by the terms of reference specifically
pleaded by the plaintiffs and that it was not broadened by his
admission
of additional duties when he testified in proceedings
relating to a special plea. Paragraphs [17], [19], [20], [21] and
[46] of
the judgment indicates how the court dealt with the scope of
the duty of care; and paragraphs [36] to [46] details the reasons for
the rejection of Burman’s evidence.
[7]
The plaintiffs argue that the broadened
scope rendered Burman’s evidence (which related to the duties
of a reasonable conveyancer),
worthy of recognition in circumstances
where the duty of care was not disputed by Nelson. Accordingly,
another court applying itself
to the negligence issue with regard to
the broadened scope of the duty of care may conclude differently.
[8]
Section 17(1)(a)
of the
Superior Courts Act
10 of 2013
provides:
‘
(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;’
[9]
Although
the word ‘would’ contemplates an onerous duty on an
applicant for leave to appeal to demonstrate ‘a reasonable
prospect of success’, this does not have to be done as a
measure of certainty. What is required of the judge whose judgment
is
sought to be appealed against, is to consider ‘objectively and
dispassionately, whether there are reasonable prospects
that another
court may well find merit in arguments advanced by the losing
party.’
[1]
It is
accordingly unnecessary for a court when considering an application
for leave to appeal to entertain doubt about the correctness
of the
judgment and order. All that is necessary is that there is a
reasonable prospect that another court may arrive at a different
conclusion. Put otherwise, leave to appeal stands to be granted even
where a court is convinced of the correctness of the judgment
and
order but there is a prospect that another court may find
differently.
[10]
The plaintiffs seek leave to appeal against
the entire order and judgment of the court.
[11]
Although differing contentions on the
merits of the application were made, I am minded to grant such leave.
[12]
I
do so on the basis essentially set out in this judgment – but
do not limit such leave exclusively thereto as I consider
that it
will be unjust to preclude interference on appeal if it is found that
the judgment and the order is obviously wrong in
other respects.
[2]
[13]
In the result, the following order is made:
1.
The first, second and third plaintiffs are
granted leave to appeal to the full court of this division against
the whole of the judgment
and order of this court delivered on 18
January 2022.
2.
The costs of this application shall be
costs in the appeal.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicants/Plaintiffs:
A. Frost with B. Westerdale
Instructed
by
Roelofse
Meyer Inc.
Gqeberha
(Ref:
L. Meyer)
Tel:
041-450 6300
For
the First Respondent/Defendant: P. Jooste
with T. Rossi
Instructed
by
Joubert
Galpin and Searle Gqeberha
(Ref:
S. Munshi)
Tel:
041-396 9257
Date
heard:
08 September 2022
Date
delivered:
22 November 2022
[1]
Per Smith J in
Valley
of the Kings Thaba Motswere (Pty) Ltd and Another v Al Mayya
International
[2016]
137 (ZAECGHC) 137 (10 November 2016) at paragraph [4].
[2]
Compare
Qunta
v Minister of Police
(CA
114/2012) [2013] ZAECGHC 53 (5 June 2013) at paragraph [5].