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[2024] ZAFSHC 64
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M.S v P.S - Leave to Appeal (1334/2018) [2024] ZAFSHC 64 (5 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:1334/2018
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
M[…]
S[…]
APPLICANT
And
P[…]
S[…]
RESPONDENT
CORAM:
NAIDOO J
HEARD
ON:
4 MARCH 2024
DELIVERED
ON:
5
MARCH 2024
JUDGMENT
- LEAVE TO APPEAL
[1]
This is an application by the applicant, M[…] S[…], for
Leave to Appeal against
the judgment in this matter, which was
delivered on 7 July 2023. The respondent opposed this application.
Adv R Van Der Merwe represented
the applicant and Adv M Louw
represented the respondent.
[2]
The judgment was assailed on various aspects, which in essence, are
that the court erred in:
2.1
finding that the respondent had discharged the onus of proving that
his non-compliance with the order
of this court dated 16 October 2019
was not wilful or
mala fides
;
2.2
finding that respondent’s maintenance obligation arising from
the Deed of Settlement, which was
made an order of court (as part of
the divorce order) on 16 October 2019 be suspended, pending the
applicant approaching the Maintenance
Court to determine her need for
maintenance and the respondent’s reciprocal obligations in
relation thereto;
I mention that on each of
the grounds listed above, the applicant set out detailed reasons for
her view that the court erred, which
is not necessary for me traverse
in this judgment. The judgment being appealed against contains full
reasons for the order made.
[3]
it is by now trite that
section 17
of the
Superior Courts Act 10 of
2013
regulates the test to be applied in an application for leave to
appeal. The relevant provisions of
section 17(1)
provide 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;”
(my emphasis and
underlining)
[4]
It has been held in a number of cases that
an applicant was, previously, merely required to show that
there is a
reasonable possibility that another court, differently constituted,
would find differently to the court against whose
judgment leave to
appeal is sought. It is clear from
section 17(I)
, set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal is required to convince the
court that there is a
reasonable prospect of success and not merely a possibility of
success.
[See in this regard
The
Mont Chevaux Trust v Tina Goosen + 18 2014 JDR LCC,
which was
cited with approval in a number of cases, such as
Matoto v Free
State Gambling and Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8
June 2017)
, a decision emanating from this Division, and also a
Full Court decision in
Acting National Director of Public
Prosecutions and Others v Democratic Alliance (19577/2009) [2016]
ZAGPPHC 489 (24 June 2016)
]
[5]
The court was referred, in the applicant’s Heads of Argument,
to a decision of the Supreme
Court of Appeal (SCA) in the case of
Ramakatsa and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021),
where the following
extract from para 10 of the judgment was quoted:
I
am mindful of the decisions at high court level debating whether the
use of the word ‘would’ as opposed to ‘could’
possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect of success is established,
leave to
appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave
to appeal
should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts
and the law
that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In other words,
the appellants
in this matter need to convince this Court on proper grounds that
they have prospects of success on appeal. Those
prospects of success
must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are
prospects of success must be shown to exist.
[6]
The judgment in this matter sets out fully the court’s reasons
for the order it has made. The
terms of the Deed of Settlement are
common cause between the parties, save that there is a dispute as to
the interpretation of
clause 1.2, which provides that “
The
maintenance is subject to review and/or suspension after calculation
of the accrual”
As set out in the judgment, the respondent
accepted the calculation of the accrual done by Mr Weihmann on 15
December 2021. The
applicant nor the respondent objected to it, and
in terms of the Deed of Settlement, if no objection was received from
either party
within 15 court days of receipt thereof, the account
shall be deemed to be confirmed by the parties (clause 4). It was on
this
basis that the respondent considered that the accrual to have
been finally calculated and attempted twice to tender the accrual
amount reflected on the calculation of 15 December 2021. When he
received no response from the applicant or her legal representatives,
he paid the amount of R600 000.00 in an attempt to bring the matter
to finality.
[7]
Hence the point I make that the interpretation of clause 1.2 seems to
be in issue. The conduct
of the applicant, the respondent and their
legal representatives was considered and fully set out in the
judgment. In the interests
of justice, and of bringing the matter to
finality, the order made was considered to be the fairest and most
expedient. The applicant
clearly seeks strict compliance with the
terms of the Deed of Settlement, without consideration of all the
surrounding and pertinent
circumstances. Given the history of the
matter, consideration had to be given to the possibility that the
finalisation of the accrual
calculation would have been delayed for a
few more years, while the respondent would have been obliged to
continue paying maintenance
for an indefinite period, without the
matter being resolved.
[8]
Neither party followed the correct legal procedures in this matter
(in respect of the appointment
of another Receiver and confirmation
of the accrual calculation), which is also discussed in the judgment,
and which still remains
to be done. Hence the nature of the order,
which would give clearer guidance in respect of a further or final
order to be made
in respect of maintenance. I should also mention
that the court had to decide on the respondent’s state of mind
at the time
that he took the various steps that he did, in order to
determine if he acted in wilful disobedience of the court order which
incorporated
the Deed of Settlement, and whether his actions were
mala fides.
[9]
With regard to prospects of success on the grounds set out in the
Notice of Appeal, I am not satisfied
that the appellant has made out
a compelling enough case that she enjoys reasonable prospects of
success on appeal, and I would
refuse leave to appeal on that basis.
However, I have noted what the SCA in the Ramakatsa case said further
in para 10 of its judgement,
that a court should take into
consideration the provisions of
section 17(1)(a)(ii)
of the
Superior
Courts Act 10 of 2013
, and even “
if the court is unpersuaded
that there are prospects of success, it must still enquire into
whether there is a compelling reason
to entertain the appeal.
Compelling reason would of course include an important question of
law or a discreet issue of public importance
that will have an effect
on future disputes. However, this Court correctly added that ‘but
here too the merits remain vitally
important and are often decisive”
[10]
Both counsel were asked to address the court on whether the facts and
circumstances of this matter raise
any questions of law or any matter
of public importance, which demand the attention of either a Full
Court of this Division or
the SCA. Mr Van der Merwe was of the view
that the arguments raised in respect of the contractual relationship
created by the Deed
of Settlement, the respondent’s failure to
adhere thereto and the grounds raised in assailing the court’s
judgment
raise issues which constitute the compelling reasons
envisaged in
section 17(1)(a)(ii)
of the
Superior Courts Act. Mr
Louw
disagreed, arguing that there is no special case or compelling
reasons for the matter to be referred to the Full Court or
the SCA.
The court will always have to decide if, objectively speaking, the
contemnor has wilfully disobeyed the court order. I
am in agreement
that the matters raised are based on the facts of this case and do
not implicate issues of law or of public importance.
It is clear that
such issues must, of necessity, be decided on a case- by-case basis.
[11]
In the circumstances, I make the following order:
The application for leave
to appeal is dismissed, with costs.
S
NAIDOO, J
On
behalf of Applicant
Adv R
van der Merwe
Instructed
by
McIntyre
Van der Post
12
Barnes Street
Westdene
Bloemfontein
(Ref:
BCS352/LHW Cato/ldv)
On
behalf of Respondent
Adv
MC Louw
Instructed
by
Steyn
Attorneys Inc
71
Durban Street
Worcester
c/o
Hill, McHardy & Herbst Inc
7
Collins Road
A
xrboretum
Bloemfontein
(Ref:
Pieter Schuurman)