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2023
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[2023] ZAGPPHC 393
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Bishop v South African Legal Practice Council [2023] ZAGPPHC 393; 417/2021 (25 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: 417/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED
DATE: 25 May 2023
SIGNATURE:
In the matter between:
TARQUIN JONATHAN
BISHOP APPLICANT
And
THE SOUTH AFRICAN LEGAL
PRACTICE COUNCIL RESPONDENT
In re:
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
APPLICANT
And
TARQUIN JONATHAN
BISHOP
FIRST RESPONDENT
BISHOP
INCOPORATED
SECOND RESPONDENT
This judgment is issued
by the Judge whose name is reflected herein and is submitted
electronically to the parties/their legal representatives
by email.
The judgment is further uploaded to the electronic file of this
matter on CaseLines by the Judge or her Secretary. The
date of this
judgment is deemed to be 25 May
2023.
JUDGMENT
COLLIS
J
1.This
is an application for leave to appeal against the judgment and order
made on 24
January 2023.
2. The application is
premised on the grounds as listed in the Application for Leave to
Appeal dated 14 February 2023.
3. In anticipation of the
hearing of the application for leave to appeal, the parties were
requested to file short heads of argument.
They both acceded to this
request so directed by the Court. The Court expresses its gratitude
to the parties for the heads so filed.
LEGAL PRINCIPLES
4.
Section 17 of the Superior Court’s Act provides as follows:
[1]
“
(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) the decision
sought to appeal does not fall within the ambit of section 16(2)(a);
And
(c) where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the real
issues between the parties.”
5.
In casu
the
applicant relies on the grounds of appeal mentioned in
section
17(1)(a)
of the
Superior Courts Act 10 of 2013
, namely, that the
appeal would have reasonable prospects of success.
6. As to the test to be
applied by a court in considering an application for leave to appeal,
Bertelsmann J in The Mont Chevaux
Trust v Tina Goosen & 18 Others
2014 JDR 2325 (LCC) at para 6 stated the following:
‘
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.’
7.
‘In order to succeed, therefore, the appellant must convince
this Court on proper grounds that he has prospects of success
on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established
than that
there is a mere possibility of success, that the case is arguable on
appeal or that the case cannot be categorized as
hopeless. There
must, in other words, be a sound, rational basis for the conclusion
that there are prospects of success on appeal.’
[2]
8.
In
Fair-Trade Independent Tobacco Association v President of the
Republic of South Africa and Another
[3]
the Full Court of this Division observed that:
“
As
such, in considering the application for leave to appeal it is
crucial for this Court to remain cognizant of the higher threshold
that needs to be met before leave to appeal may be granted.
There must exist more than just a mere possibility that another
court, the SCA in this instance, will, not might, find differently on
both facts and law. It is against this background that
we
consider the most pivotal grounds of appeal.”
9. Having read the papers
and having carefully heard counsel I come to the conclusion that
there is no a reasonable prospect that
another court would come to a
different conclusion on the order of the court in terms of section
17(1)(a)(i) of the Superior Courts
Act 10 of 2013. This I say so in
circumstances where the applicant filed multiple affidavits in
opposing the striking application,
wherein he had placed
contradictory evidence before this Court.
ORDER:
10. Consequently, the
following order is made:
10.1.
Leave to appeal is refused, with costs on an attorney and client
scale.
COLLIS J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
I agree and it is so
ordered.
PHAHLANE J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
Counsel
for Applicant
:
Adv.
F. Botes SC & Adv. R. De Leeuw
Instructed
By
:
Wiese and Wiese Inc.
Attorneys
Attorney
for Respondent
:
Mr.
L. Groome
Instructed
By:
Rooth and Wessels Inc.
Attorneys
Date of Hearing:
15 May 2023
Date of Judgment:
25 May 2023
[1]
Act
10 of 2013
[2]
S
v Smith
2012 (1) SACR 567
(SCA) at para 7.
[3]
Case
no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6].