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2024
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[2024] ZAFSHC 49
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Prinsloo v Majiedt N.O and Another (641/2021) [2024] ZAFSHC 49 (20 February 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:   641/2021
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates:        YES/NO
In
the between:
EUGENE
PRINSLOO
Applicant
And
DONOVAN
THEODORE MAJIEDT N.O.
First
Respondent
REINETTE
STEYNSBURG N.O.
Second
Respondent
In
Re:
DONOVAN
THEODORE MAJIEDT N.O.
First
Plaintiff
REINETTE
STEYNSBURG N.O.
Second
Plaintiff
And
EUGENE
PRINSLOO
Defendant
CORAM:
VAN ZYL, J
HEARD
ON:
28 AUGUST 2023
DELIVERED
ON:
20 FEBRUARY 2024
[1]
This is an application for leave to appeal which deals with the
interpretation of
Section 63 of the Long-Term Insurance Act, 52 of
1998 (“
the LTIA
”).
[2]
The applicant was the defendant in the court
a quo
and the
respondents were the plaintiffs. I will refer to the parties as in
the present application.
[3]
This matter was initially enrolled as a civil trial.  At the
commencement of
the trial I was requested, by agreement between the
parties, to order a separation of issues in terms of Rule 33(4).
In this
regard they provided me with a draft order and I made the
following order in terms thereof:
“
1.
Issues are separated in terms of Rule 33(4) as set out in the bundle
entitled ‘Separation of Issues –
Rule 33(4)’;
2.
The separated issue to be determined is whether the proceeds of a
long-term life insurance policy received
by Nelly Arlene Prinsloo are
protected (or not) in terms of the provisions of Section 63 of the
Long-Term Insurance Act, No. 52
of 1998;
3.
Until determination of the separated issue in 2 supra (whether by
appeal or otherwise), all further proceedings
in the action under
case no. 641/2021 are stayed.”
[4]
The aforesaid “Separation of Issues - Rule 33(4)” bundle
(“
the bundle
”) contained a document also titled
“Separation of Issues – Rule 33(4)” (“
the
Rule 33(4)-document
”), together with annexures thereto.
In paragraph 1.2 of the Rule 33(4)-document the parties agreed that I
was to determine
the separated issue “
on the common cause
facts and assumed facts
” set out in the document.
[5]
I concluded with the following order, which is the order which is
being appealed against:
“
1.
The benefits of the long-term life insurance policy received by Nelly
Arlene Prinsloo are not protected in
terms of the provisions of
section 63 of the Long-Term Insurance Act, 52 of 1998.
2.
The costs in respect of the determination of the aforesaid separated
issue stand over for later adjudication.”
Applicable
legal principles pertaining to applications for leave to appeal:
[6]
Section 17(1)(a) of the Superior Courts Act, 10 of 2013 (“
the
Act
”) determines as follows:
“
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)
…”
[7]
In the judgment of
Acting National Director of Public
Prosecutions v Democratic Alliance
In Re
Democratic
Alliance v Acting National Director of Public Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016) the court held at para
[25] of the judgment that the Act has raised the bar for granting

leave to appeal and in this regard it referred to the judgment of
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
2014 JDR 2325 (LCC), in which judgment the court held as follows at
para [6]:
“
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, see
Van
Heerden v Cronwright & Others
1985 (2) SA 342
(T) at
343H.  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.”
See also
Rohde v S
2020 (1) SACR 329
(SCA) at para [8] and
Fair-Trade Independent
Tobacco Association v President of the Republic of South Africa and
Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at
para [4].
[8]
In considering whether there is some other
compelling reason why the proposed appeal should be heard,
an
important question of law may constitute such a compelling reason.
However, the merits thereof still need to be considered in
deciding
whether to grant leave to appeal or not. In
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA) at para [2] the
court determined as follows in this regard:
[2]
In order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii) of the
Superior Courts Act an
applicant for leave must satisfy the court that the appeal would have
a reasonable prospect of success or that there is some other

compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still enquire
into
whether there is a compelling reason to entertain the appeal.
A
compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future

disputes. But here too, the merits remain vitally important and are
often decisive.
Caratco must satisfy this court that
it has met this threshold.” (My emphasis)
[9]
In
Talhado Fishing Enterprises
(Pty) Ltd v Firstrand Bank Ltd t/a First National Bank
(1104/2022)
[2023] ZAECQBHC 16 (14 March 2023) the aforesaid principles were duly
followed and applied:
“
4.
Irrespective
of the prospects of success, there may nevertheless exist a
compelling reason for the appeal to be heard. The subsection
does not
contain an exhaustive list of criteria, and each application for
leave to appeal must be decided on its own facts.
5.
It
is the applicant for leave to appeal must demonstrate that there is a
compelling reason why the appeal should be heard.
6.
…
7.
Other compelling reasons include
the fact that the decision sought to be appealed against involves an
important question of law
and that the administration of justice,
either generally or in the particular case concerned, requires the
appeal to be heard.
…
8.
As far as compelling reasons are
concerned, the merits of the prospects of success remain vitally
important and are often decisive.”
[10]
In terms of section 16(1)(a)(i) of the Act the proposed appeal lies
either to the Supreme Court
of Appeal or a full court of this
Division, depending on the direction issued in terms of section
17(6).  Section 17(6)(a)
of the Act determines the following:
(
6)
(a)
If
leave is granted under subsection (2)
(a)
or
(b)
to
appeal against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges
granting leave must
direct that the appeal be heard by a full court of that Division,
unless they consider-
(i)   that
the decision to be appealed involves a question of law of importance,
whether because of its general application
or otherwise, or in
respect of which a decision of the Supreme Court of Appeal is
required to resolve differences of opinion; or
(ii)   that
the administration of justice, either generally or in the particular
case, requires consideration by
the Supreme Court of Appeal of the
decision, in which case they must direct that the appeal be heard by
the Supreme Court of Appeal.”
The
merits of the application for leave to appeal:
[11]
Both Mr Pretorius, who appeared on behalf of the applicant, and Mr
Meintjies, who appeared on
behalf of the respondents, submitted
lengthy and well-reasoned heads of argument in support of their
respective submissions.
[12]
The Notice of Appeal filed on behalf of the applicant consists of 28
grounds of appeal. For the
sake of brevity, I do not intend repeating
same herein. The said Notice of Appeal concludes by stating that I
erred in not having
granted the following order:
“
1.
The benefits of the long term insurance policy received by Nelly
Arlene Prinsloo are protected in terms of
the provisions of section
63 of the Long-Term Insurance Act, 52 of 1998.
2.
Plaintiff`s claims are dismissed.
3.
Plaintiffs are ordered to pay the costs of defendant.”
[13]
In my view I gave a detailed judgment as to how I arrived at the
order I made. It comprises,
firstly, an interpretation of section 63
of the LTIA and, secondly, a consideration of the applicability of
section 63 in particular
circumstances. I thereupon came to the
following conclusions at paragraphs [49] and [50] of my judgment:
“
[49]
…
1.
The word ‘
person
’ in section 63 of the LTIA is to
be interpreted to be a reference to the policyholder and likewise the
words ‘
his/her
’ and ‘
he/she
’
are linked to the word ‘
person
’ and are
consequently also to be interpreted to be references to the
policyholder.
2.
Section 63 is only applicable in instances where the policyholder, or
his
spouse, is the life insured and the said policyholder is also the
beneficiary in terms of the policy.
3.
In an instance where a third party, that is somebody else than the
policyholder, is appointed as beneficiary
and the beneficiary accepts
the appointment upon the death of the policyholder, section 63 is not
applicable.
The separated
issue:
[50]
In the present matter, where the deceased as policyholder appointed
Nelly as beneficiary, which appointment Nelly
accepted upon the
deceased`s death, section 63 is not applicable.”
[14]
It is important to specifically point out that my conclusion and
order was not fully in accordance
with any of the two parties’
contentions and consequently it also did not fall within the ambit of
the parties’ agreement
pertaining to costs. In this regard I
stated as follows at paragraphs [53] to [55] of my judgment:
“
Costs:
[53]
As indicated earlier in the judgment, the parties agreed that should
I find in favour of the plaintiffs’ interpretation
of section
63 of the LTIA, then costs should be awarded to the plaintiffs in
respect of the separated issue.
[54]
However, in my view, my findings do not fall within the ambit of the
aforesaid agreement, in that:
1.
Although I do find in favour of the plaintiffs’ interpretation
that
the word ‘
person
’ in section 63 of the LTIA
is to be interpreted to be a reference to the policyholder and
likewise that the words ‘
his/her
’ and ‘
he/she’
are also to be interpreted to be references to the policyholder; and
2.
Although I agree with the plaintiff`s contention that, in
circumstances
where section 63 is indeed applicable, upon the
policyholder`s death the policy benefits are protected only against
the debts of
the policyholder;
3.
I, however, substantively differ from the plaintiff`s interpretation
of section 63 in so far as it was
the plaintiff`s case that the said
section is applicable in the circumstances of the present matter
where a third party was appointed
as beneficiary and accepted the
appointment upon the policyholder`s death and received payment of the
policy benefits directly
and not via the estate of the deceased;
4.
Since, according to my finding, section 63 of the LTIA is not
applicable to the present matter.
[55]
In the circumstances I deem it apposite that the costs in respect of
the determination of the separated issue
stand over for later
adjudication.”
[15]
A repeat or reconsideration of all the arguments presented by the
respective parties will result
in a second judgment similar in length
and detail than my current judgment. It suffices to state that, in my
view, there is a reasonable
prospect that a different court would
come to a different conclusion,
inter alia,
based on the
following:
1.
My conclusion was not fully in accordance with the contention of
either of the two parties.
2.
The interpretation of section 63 of the LTIA is related to and/or
linked to its applicability in the
present circumstances and had I
erred in respect of the interpretation, it most probably will have an
impact upon its applicability.
3.
I did not pronounce upon the impact of the marriage in community of
property, since I found that I was
not called upon to do so. If I had
erred in this respect, it may impact upon the outcome.
4.
I put a lot of effort, time and research into my consideration of the
outcome of the judgment to the
extent that I cannot exclude that
there is a reasonable prospect that a different court would come to a
different conclusion based
on the same (and/or other) research.
[16]
In the Notice of Appeal the applicant applied for leave to appeal to
the Full Court of this Division.
Mr Meintjies, however, submitted
that should I grant leave to appeal (which he is still opposing),
same should be granted to the
Supreme Court of Appeal.
[17]
In my view the issues in this proposed appeal involve questions of
law of public importance because of their
general application, It
consequently constitutes a compelling reason as intended in section
17(1)(a)(ii) of the Act and which,
in my view, carries reasonable
prospects of success to the extent as required by the Act and the
relevant case law. The many academic
articles are, in my view,
further indicative of the importance of the legal questions raised by
this appeal.
[18]
In the circumstances I deem it apposite that leave be granted to
appeal to the Supreme Court
of Appeal.
[19]
With regard to costs, there is no reason why the usual order that the
costs of the application
for leave to appeal should not be costs in
the appeal.
Order:
[20]
The following order is consequently made:
1.
Leave to appeal is granted to the applicant to appeal to the Supreme
Court of Appeal against the whole
of the order granted and the
judgment delivered by the court
a quo.
2.
The costs of the application for leave to appeal are to be costs in
the appeal.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
J.J. Pretorius
Instructed
by:
Muller
Attorneys
Potchefstroom
C/O
Graham Attorneys
Bloemfontein
litigation@grahamattorneys.co.za
Ref:
EAL1/0085
On
behalf of the respondents:
Adv.
L. Meintjies
Instructed
by:
Noordmans
Attorneys
Bloemfontein
anton@noordmans.co.za