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[2023] ZAECQBHC 3
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Lawrence v Van Huysteen and Another (Leave to Appeal) (1889/2022) [2023] ZAECQBHC 3 (24 January 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, GQEBERHA
CASE
NO: 1889/2022
In
the matter between:
IRENE
LORNA LAWRENCE
Applicant
(IDENTITY
NUMBER: 4[…])
and
LORNA
VAN
HUYSTEEN
First Respondent
(IDENDTIY
NUMBER: 6[…])
STEPHANUS
ALBERTUS VAN HUYSTEEN
Second Respondent
(IDENTITY
NUMBER: 6[…])
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
LOWE
J
INTRODUCTION
1.
In this matter, I originally heard
extensive argument for both sides followed by a full judgment dealing
with all the issues raised
on the papers and in argument dismissing
the application against both first and second respondents, each party
to pay their own
costs.
2.
Applicant seeks leave to appeal, in an
extensive notice of application for leave to appeal, to the Full
Court alternatively the
Supreme Court of Appeal, against the whole of
my judgment and order, save in respect of the dismissal of the
application to strike
in terms of Rule 6(15) and the dismissal of the
application in respect of second respondent, but including the costs
order granted
in relation to both the main application and the
application to strike.
3.
In the application for leave there are four
grounds argued, to which I will refer more fully hereafter insofar as
is necessary.
THE
APPROACH TO APPLICATIONS FOR LEAVE TO APPEAL
4.
I
have given careful consideration to the principles, which are applied
by our courts in respect of applications for leave to appeal
and
particularly in terms of
Section 17(1)
of the
Superior Courts Act 10
of 2013
and the sometimes suggested slightly changed onus or level
that has to be applied thereto as has been suggested in a number of
cases particularly in the Labour Court.
[1]
I am, in any event, in agreement with Smith J in the matter of
Valley
of the Kings and another v Al Mayya International
[2]
,
in
which Smith J dealt extensively with the test to be applied at the
application for leave to appeal stage, in which he determined
the
matter on the basis simply whether there were reasonable prospects
that another court may find merit in arguments advanced
by the losing
party.
5.
Put otherwise, if there are reasonable
prospects of success that another court may differ, leave to appeal
should be granted.
6.
I
have also had careful regard to the decision of the Supreme Court of
Appeal,
Minister
of Justice and Constitutional Development and Others v Southern
Africa Litigation Centre and Others
[3]
,
a judgment given on the 15 March 2016 in which Wallis JA dealt with
an application for leave to appeal, commenting on appeals
in which
there is a particularly important matter to be decided that is a
matter of public importance. At paragraph [23]
he outlined the
basis underlying what he said in paragraph [24], which I intend to
quote selectively, and it was against this background
that it was
suggested that in that matter jurisprudence should have been
considered as a guide to whether, notwithstanding the
High Court’s
view in that matter as to the prospects of success, leave to appeal
should have been granted, having regard
to the importance of the
matter to various parties and the public.
7.
His Lordship said as follows at paragraph
[24]:
“
That
is not so say that merely because the High Court determines an issue
of public importance it must grant leave to appeal.
The merits
of the appeal remain vitally important and will often be decisive.”
8.
In any event, it is clear that if there is
a reasonable prospect that another court may differ on the issues
raised, leave to appeal
must be given.
THE
ARGUMENTS IN THIS MATTER
9.
In the heads of argument applicant’s
counsel contended that I, having found at paragraphs 55 and 90 of the
judgment that first
respondent was clearly in breach of the order
and/or at least had failed to comply with the order, that this should
have been sufficient
in the circumstances to find that first
respondent was in fact in contempt of the order.
10.
I do not agree for the following reasons.
In paragraph 55 of my judgment I stated the principle applicable to
the question
of an evidentiary burden which attaches to a respondent
to demonstrate lack of wilfulness and
male
fides
in proceedings such as were
before me. In stating that on the face of it first respondent
was clearly in breach of the order
granted, this was clearly
qualified to the extent that “
in
the result the existence of wilfulness and male fides is presumed and
that evidentiary burden falls to be discharged.
”
11.
This did not by any means constitute
sufficient as argued, it being clear that it still remained to
consider whether first respondent
had discharged the evidentiary
burden. At paragraph 90 as to costs I found that it was
understandable that applicant
having heard the contents of the voice
notes referred to in the main judgment had good reason to believe
that in the absence of
an explanation first respondent had failed to
comply with the order and was still in possession of the original
items referred
to. This of course also does not constitute
sufficient in the circumstances for a finding of contempt, but was
the reason
for a costs order being made, the application having been
launched in the absence of that explanation which came subsequently.
12.
In my fully reasoned and motivated judgment
I concluded that on the essential issues before me, in the
application, there were real
disputes concerning the issues of
wilfulness and male fides and that without a determination thereof it
was not an application
which entitled applicant to the relief that
applicant sought. In my view, in essence, the matter remained a
contempt application,
it came down to a consideration whether the
disputes raised, primarily whether the allegation that the items were
already handed
to applicant before the order was granted, fell to be
dismissed in the light of the voice notes referred to, the questions
of fact
to be decided on the allegations and evidence in the
application.
13.
I concluded that on the papers and the
absence of a referral to oral evidence being sought, it was not
possible to decide the crucial
issues relevant to the relief sought,
this in fact going to whether or not the applicant’s original
identity document, passport
and bank card had been handed back by
first respondent to applicant prior to the original application being
launched, or whether
she had retained these and was in breach of the
order given by Van Zyl DJP.
CONCLUSION
14.
I have carefully considered the four
grounds of appeal in the application for leave to appeal and the
arguments made before me by
counsel for applicant, and I am of the
view that applicant has failed to establish that there is indeed a
reasonable prospect that
another court may come to a conclusion other
than did I.
15.
In the result the application for leave to
appeal is refused.
ORDER
16.
It is ordered that:
1.
The application for leave to appeal is
refused.
2.
Applicant is to pay first respondent’s
costs in the application for leave to appeal.
M.J. LOWE
JUDGE
OF THE HIGH COURT
Appearing
on behalf of the Applicant: Mr. C.B. Garvey
instructed
by Jacques Du Preez Attorneys,
Port
Elizabeth, Mr. Du Preez.
Appearing
on behalf of the Respondent: Ms. Morris
instructed by Quinton van
den Berg Attorneys Inc.,
Port
Elizabeth.
Date
heard:
7 December 2022
Date
delivered: 24
January 2023
[1]
The
Mont Chevaux Trust (IT 2012/28) v Goosen and 18 others
LCC14R/2014;
Fair
Trade Tobacco Association v President of the Republic of South
Africa and Others
(21688/2020)
[2020] ZAGPPHC 311.
[2]
Grahamstown
case no: 2226/2016, 10 november 2016
[3]
2016
(3) SA 317
(SCA).