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2023
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[2023] ZAFSHC 219
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Amanzi Ahlo Bile Trading 25 (Pty) Ltd t/a Trisch Industries v Celanubusi (Pty) Ltd (1715/2022) [2023] ZAFSHC 219 (2 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
no: 1715/2022
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In the matter between:
AMANZI
AHLO BILE TRADING 25 (PTY) LTD
t/a
TRISCH INDUSTRIES
APPLICANT
And
CELANUBUSI
(PTY) LTD
RESPONDENT
LEAVE TO APPEAL
APPLICATION JUDGMENT
BEFORE:
CHESIWE, J
HEARD
ON:
THE PAPERS AS PER THE HEADS OF
ARGUMENT, FILED ON 17 MARCH 2023 AND 29 MARCH 2023 RESPECTIVELY.
DELIVERED
ON:
This judgment was handed
electronically by circulation to the parties’ representatives
by email. The date and time for hand-down
is deemed to be at 13h00 on
2 JUNE 2023.
[1]
The Applicant seeks leave to appeal the summary
judgment and order granted on 3 February 2023. The application is
opposed by the
Respondent.
[2]
Parties were requested to file written heads of
argument and the matter was to be decided on the papers in terms of
the rules.
[3]
The grounds for leave to appeal are listed and
well versed and will therefore not be repeated.
[4]
The Applicant contends that it has good prospects
of success on appeal. On the other hand, the Respondent contends that
there exists
no sound and rational basis to conclude that there are
prospects of success.
[5]
The Application for leave to appeal is instituted
in terms of Section 17(1) and (2) of the Superior Courts Act 10 of
2013 (herein
after to be referred to as the Act).
[6]
Section 17 of the Act provides 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)
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.
[7]
The
test to be applied in applications of this nature is explained as
follows
[1]
:
“
There
can be no doubt that the bar for granting leave to appeal has been
raised. Previously, the test was whether there was reasonable
prospect that another court might come to a different conclusion.
Now, the use of the word ‘would’ indicates a measure
of
certainty that another court will differ from the court whose
judgment is sought to be appealed against.”
[8]
In
Smith
v S
[2]
,
the
court dealt with the question of what constitutes reasonable
prospects of success as follows:
a.
“
What the test of reasonable prospects of
success postulates is a dispassionate decision, based on the facts of
the law, that a court
of appeal could reasonably arrive at a
conclusion different to that of the trial court. 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 categorised as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of success
on appeal.”
[9]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
,
the court held as follows:
“
[16]
Once again it is necessary to say that leave to appeal, especially to
his court, must not be granted unless there truly is
a reasonable
prospect of success. Section 17(1)(a) of the Superior Court Act 10 of
2013 makes it clear that leave to appeal may
only be given where the
judge concerned is if the opinion that the appeal would have
reasonable prospect of success or there are
some other compelling
reasons why it should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There
must be sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[10]
Most of the grounds sought to be relied upon are
essentially a rehash of the case as set out in the pleadings and
fully argued and
dealt with in my judgment.
[11]
The issue raised in these grounds for appeal,
entail a revisit to the seriously contended issues in which the
Applicant contends
that there are prospects of success. In an
application for leave to appeal, the Applicant is not precluded to
revisit the issues,
provided that the court is satisfied that there
is a reasonable prospect that the factual matrix would receive a
different interpretation
by another court.
[12]
Based on the submissions of the Applicant, and
indeed in consideration of the bar that has been raised for granting
leave to appeal
against the judgment, in my view, I am inclined to
agree with the submissions of the Respondent.
[13]
I am therefore of the considered view that the
Applicant is without merit and that the Applicant does not have
reasonable prospects
of success on appeal and that the application
should be dismissed with costs.
[14]
I accordingly make the following order:
1.
The application for leave to appeal to the full
bench of this Division is dismissed with costs.
CHESIWE, J
On
behalf of the Applicant:
Adv.
JS Rautenbach
Instructed
by:
Huggett
Retief Incorporated
BLOEMFONTEIN
On
behalf of Respondent:
Adv.
M Karolia
Instructed
by:
Du
Toit Lambrecht Attorneys
BLOEMFONTEIN
[1]
Hans
Seuntjie Matoto v Free State Gambling and Liquor Authority
(987/2017)
[2018] ZASCA 110
(12 September 2018) in Cornelius
Jahannes De Bruyn N.O and Another v Koot Oosthuizen Attorneys and
Another (3668/2021)
[2022] ZAFSHC 148
(19 May 2022)
[2]
2012
(1) SACR 567 (SCA)
[3]
(1221/2015)
[2016] ZASCA 176
(25 November 2016)