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2024
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[2024] ZAGPJHC 89
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Kreetiv Communication CC v Harrington N.O. and Others (21549/2021) [2024] ZAGPJHC 89 (6 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
REPUBLIC
OF SOUTH AFRICA
CASE
NO
: 21549/2021
1. REPORTABLE: YES/NO
2. OF INTEREST TO OTHER
JUDGES: YES/NO
3. REVISED: YES/NO
In
the matter between:
KREETIV
COMMUNICATION CC
APPLICANT
And
ANDREW
JAMES
FIRST
RESPONDENTS
HARRINGTON N.O.
MARIUS
HOFF MULLER N.O.
SECOND
RESPONDENT
JOHN
RUSSEL MACKEY N.O.
THIRD
RESPONDENT
INGE
FRANCES PICK N.O.
FOURTH
RESPONDENT
In their capacities as
the duly appointed
Trustees for the time
being of
VUNANI
PROPERTY INVESTMENT
TRUST
KUPER
LEGH PROPERTY
FIFTH RESPONDENT
MANAGERS (PTY) LTD
JUDGMENT
(Leave
to Appeal Application)
SENYATSI
J:
[1]
This is an
application to appeal the order I granted on 17 July 2023 in
terms of which I granted leave to file a supplementary
affidavit by the respondents to the extent that they sought to
introduce the annexures referred to in the answering affidavit in
the
main application. I also ordered the applicant (the
plaintiff in the main action) to put up the security for costs
in the
sum of R500 000 with costs. The judgment did not deal with the
determination of the main claim as that is for the trial
Court to
deal with.
[2]
The contestation
against the judgment has been laid bare in terms of the notice of
application for leave to appeal and will not
be repeated in this
judgment.
[3]
The requirement and the
test for granting leave to appeal are regulated by
section 17(1)(a)
of the
Superior Courts Act No. 10 of 2013
which states as follows:
“
(1)
Leave to appeal may only be given where the judge
or judges concerned are 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.”
[4]
In
Mont
Chevaux Trust v Goosen and Others
[1]
Bertelsman
J interpreted the test as follows:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion…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.”
[5]
In
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance: In re: Democratic Alliance v Acting National Director
of
Public
Prosecutions
[2]
the
court acknowledged the test by Bestertsman J.
[6]
In
Mothule
Inc Attorneys v The Law Society of the Northern Provinces and
Another
[3]
,
the Supreme Court of Appeal stated as follows regarding the trial
court’s liberal approach on granting leave to appeal:
“
It
is important to mention my dissatisfaction with the court a quo’s
granting of leave to appeal to this court. The test is
simply whether
there are any reasonably prospects of success in an appeal. It is not
whether a litigant has an arguable case or
mere possible of success
.”
[7]
Having considered the grounds of appeal and the heads of arguments
prepared by both parties, I
am not persuaded that the requirements of
section 17(1)
(a) of the Act have been met. I am also not convinced
that there is a compelling reason to grant the application for leave
to appeal.
There is therefore no prospect that the appeal would
succeed.
ORDER
[8]
The following order is issued:
(a)
The application for leave to appeal is dismissed with costs.
SENYATSI M L
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
Delivered:
This judgment and order was prepared
and authored by the Judge whose name is reflected and is handed down
electronically by circulation
to Parties / their legal
representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The
date of the order is deemed to be
the 6 February 2024.
Appearances
:
For the
Applicant:
Ms CV Govindsamy
Instructed
by:
appointed/designated
representative of the applicant
For the Respondent:
Adv S Mc Turk
Instructed
by:
UYS Matyeka
Schwartz Attorneys
Date Judgment
Reserved: 15 November 2023
Date of
Judgment:
6 February 2024
[1]
2014
2325 (LCC)
[2]
(Case
no: 19577/09) ZAGPPHC 489 at para 25
[3]
(213/16)
[2017] ZASCA 17
(22 March 2017)