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[2023] ZAFSHC 2
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Diseko v Anthony Berlowitz Attorneys and Others (1580/2020) [2023] ZAFSHC 2 (10 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION
,
BLOEMFONTEIN
Case
Number:1580/2020
In
the matter of:
NEO
KHUMO
DISEKO
APPLICANT
and
ANTHONY
BERLOWITZ ATTORNEYS
1
st
RESPONDENT
VOLTEX
(PTY) LTD t/a LIGHTING STRUCTURES
AND
ATLAS
GROUP
2
d
RESPONDENT
ABSA
BANK
3
rd
RESPONDENT
THERESA
VAN
DER
MERWE
4
th
RESPONDENT
JUDGMENT
BY: MOLITSOANE, J
HEARD
ON:
25 NOVEMBER 2022
DELIVERED
ON:
This
judgement was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII on
10
January 2023. The date and time for hand-down is deemed to be on 10
January 2023 at 11HOO
.
[1]
The applicant is the unsuccessful party in
an application for rescission of two costs orders granted against
her. She seeks leave
to appeal the dismissal of her application to
rescind the said orders
[2]
Section 17(1)
of the
Superior Courts Act 10 of 2013
states:
"Leave
to appeal
17.
(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 on 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."
The
test to be applied in order to determine whether
to grant an application for leave to appeal is
now higher than what it
used to be. It is no longer whether
another court
may
come
to a different decision than what the trial court arrived at. It is
now whether another court, sitting as court of appeal,
would
come to a different decision.
The
use
of
the
word
'would'
connotes
a
measure
of certainty that another court will
differ from the judgment sought to be appealed against.
[3]
In
essence the
attack on the judgment of this court is three fold:
1.
That this
court erred in failing to recognize and apply the principle that
Rule
42(1)(a)
caters for mistakes in the proceedings, which may either be
one which appears on the record which
appears
on the record
of the
proceedings
or
one which
subsequently becomes apparent from the information made available in
an application for rescission of judgment:
(
my emphasis)
2.
That this
court failed to recognise and distinguish between the claim for
rescission of the costs order in the business rescue application
and
the claim for rescission of the costs order in the application for
leave to appeal;
3.
That
this
court erred in
finding that
the
costs
orders were not granted in the applicant's absence.
[4]
It
is apt to refer to
Lodhi
2 Properties v Bondev
[1]
in
which
the court said:
"...
a judgment to which a party is procedurally entitled cannot be
considered to been granted erroneously by reason of facts
of which
the judge who granted the judgment, as he was entitled to do was
unaware... " See
also
Freedom
Stationary
&
Others
v Hassam
&
Others
[2]
[5]
It is undisputed that
the Applicant was cited as a party in the business rescue application
as well as an application for leave
to appeal the order dismissing
the business rescue application. She filed
a
confirmatory
affidavit
as
a
party
in
the
business
rescue
application.
In my view she
participated fully in the business rescue application. She
was legally
represented. I agree with Counsel for the First Respondent that the
outcome of the adverse cost orders is
actually the
reason for bringing the
ill-fated
application. That the Fourth Respondent was indemnified against costs
subsequent to the institution of business recue
application, may also
be the reason for the application by the Applicant. I agree that it
would seem unfair that the Fourth Respondent
was indemnified against
the costs but this court is not seized with determining the
circumstances under which such indemnification
was granted. In any
case this court is further not called upon to decide whether it was
fair or unfair to have granted the indemnification.
It cannot be
argued that the judge in the business rescue and the leave to appeal
was not entitled to exercise his discretion and
grant the cost
orders. It is most disconcerting that after the adverse cost orders
were made, Applicant would contend that she
had not mandated the
First Respondent
to represent
her. It is undisputed that she was a
party
to
the
proceedings
in
which cost
orders were
made
against
her.
[6]
This court
dealt fully with the question of the alleged absence of the applicant
in the applications sought to be rescinded. I dealt
with this issue
in the court a quo as follows:
"
[14]
The
contention
that
the
order
was
granted
in
the
absence
of the
applicant
is
disingenuous.
The
proceedings
in both
the business rescue and leave to appeal applications were
so
called
motion proceedings.
It is
common knowledge that such
proceedings
are
essentially
adjudicated
on
affidavits and supporting documents. Parties do not generally attend
court. It cannot
be
said
that
once
the
court
grants
an
order,
such
an
order
was granted in the
absence of the parties. The parties were in my view 'present' because
their documents were properly before court.
During the applications
their Counsel moved their applications on their behalf. Even in
circumstances where the legal representatives
of the parties are not
before court, once their papers are properly before court, such
papers cannot be ignored..."
[6]
The
applicant
participated
fully
in
the
business rescue proceedings. She filed affidavits as an affected
applicant. The application for leave to appeal was a sequel
to the
dismissal. The orders she seeks to rescind were not granted in her
absence. In further amplification I refer to
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State and Others
[3]
where
the Constitutional Court said the following::
"
[60] Accordingly, this Court found that the irregularity committed by
the High Court, insofar as it prevented the parties'
participation in
the proceedings, satisfied the requirements of an error in
rule
42(1)(a)
, rendering the order rescindable. Whilst that matter
correctly emphasises the importance of a party's presence, the extent
to which
it emphasises actual presence must not be mischaracterised.
As I see it, the issue of presence or absence has little to do with
actual, or physical, presence and everything to do with ensuring that
proper procedure is followed so that a party can be present,
and so
that a party, in the event that they are precluded from
participating, physically or otherwise, may be entitled to rescission
in the event that an error is committed. I accept this. I do no,
however, accept that litigants can be allowed to butcher, of their
own will, judicial process which in all other respects has been
carried out with the utmost degree of regularity, only to then,
ipso
facto
( by that same act), plead the " absent victim".
If everything turned on actual presence, it would be entirely too
easy
for litigants to render void every judgment and order ever to be
granted, merely electing absentia(absence).
[7]
In my view the
Applicant has failed to establish that another court would grant a
different order to the one granted. I accordingly
make this
order:
ORDER
1.
The application for leave to appeal is dismissed with costs.
P.E.
MOLITSOANE J
On
Behalf
of
the
Applicant:
Adv
Van
der Merwe
Instructed
by:
VAN WYK ATTORNEYS
BLOEMFONTEIN
On
Behalf of the First Respondent:
Adv L Acker
Instructed
by:
Blair Attorneys
[1]
[2007]
SCA 85 ( RSA) para [25].
[2]
(921/
2017) [
2018] ZASCA 170
( 30 November 2018) at para [18].
[3]
(CCT
52/21}
[2021] ZACC 28
; 2021(110 BCLR 1263(CC).