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[2023] ZAFSHC 320
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X-Pharm (Pty) Ltd v Emoyamed Hospital (Pty) Ltd and Another - Leave to Appeal (6458/2022) [2023] ZAFSHC 320 (10 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:6458/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the appeal of:
X-PHARM
(PTY) LTD
APPLICANT
and
EMOYAMED
HOSPITAL (PTY) LTD
FIRST
RESPONDENT
EMOYA
PROP MED(PTY) LTD
SECOND
RESPONDENT
JUDGMENT
BY:
MOLITSOANE, J
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to
SAFLII
on 10 AUGUST 2023. The date and time for hand-down is deemed to be 10
AUGUST 2023 at 12h30.
Adjudicated
on Heads of Arguments as directed by Court.
[1]
This is an application by the Second Respondent, for leave to appeal
the whole judgment and order of Gusha,
AJ delivered on 25 May 2023.
Gusha, AJ being unavailable since her acting stint has ended, I am
now seized with this application.
The Applicant opposes the granting
of the relief sought. The First Respondent did not participate in
these proceedings.
[2]
Section 17 of the Superior Court 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
.”
[3]
Section 17(1) requires that an Applicant seeking leave to appeal is
required to convince the court that there
is a reasonable prospect of
success and not merely a possibility of success in the appeal. In
Democratic
Alliance v President of the Republic of South Africa and Others
[1]
the Full Court held as follows:
“
The
test as now set out in s17 constitutes a more formidable threshold
over which an applicant must engage than was the case. Previously
the
test was whether there was a reasonable prospect that another court
might come to a different conclusion. See, for example,
Van
Heerden v Cronwright and Others
1985(2)
SA 342 (T) at 343 H. The fact that the Superior Courts Act now
employs the word ‘would ‘as opposed to ‘might
‘serves to emphasise this point. As the Supreme Court of Appeal
said
in Smith v S
2012(1) SACR 567 (SCA) at para 7;
‘
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.’
[4]
The
court
in
Ramakatsa
and Others v African National Congress and Another
[2]
held
as follows:
“
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act
[3]
(the
SC Act), leave to appeal may only be granted where the judges
concerned are of the opinion that the appeal would have a reasonable
prospect of success or there are compelling reasons which exist why
the appeal should be heard such as the interests of justice.
[4]
…
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. ... 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.
[5]
”
[5]
In my view the liability of the Second Respondent is based on the
narrow point raised by the Court a quo as
set out as follows at the
end of the judgment:
“
[42]
…I hold that the applicant was in peaceful and undisturbed
possession of the premises until disturbed herein by the
respondents
on the 24
th
December 2022.
I
am fortified in this finding by the following; albeit that the
applicant conceded that it had no dispute with the 2
nd
Respondent, the fact is there is a clear nexus between the 1
st
and 2
nd
respondent. The latter being the owner of the premises in question
and the former acting as sub-lessor of the premises. It is
particularly illuminating that neither of the respondents disavow
locking and or issuing the instruction to lock the premises, choosing
only to focus on the fact that the applicant stated in its papers
that it did not know who of the 2 respondents spoliated it. In
view
of the nexus between the respondents, the dispute between the
applicant and the respondents the most plausible inference to
draw is
that they are co-spoliators
.
”
( my emphasis)
[6]
It is necessary to succinctly set out the following common cause
facts: The Second Respondent is the owner
of the building known as
Phase 3A situated at the property known as Emoya Estate. The Second
Respondent has leased the premises
aforementioned to the First
Respondent. The First Respondent, in turn, sub-leased to the
Applicant for the latter to conduct a
professional business of a
pharmacy. Mr. Jacobus (Buks) Westraad is the director of both the
First and Second Respondent.
[7]
It is in my view trite that the Applicant must make out its case in
the founding affidavit, for this reason,
the Applicant stands and
falls on the case it made on its founding affidavit. This principle
was articulated as follows in
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co(Durban)
and Another
[6]
:
“
The
correct approach to the problem was enunciated clearly by CANEY J in
Bayat and
Others v Hansa and Another 1955(3) SA 547 (N) at 553D:
‘…
the
principle which I think can be summarised as follows…that an
applicant for relief (save in exceptional circumstances)
make his
case and produce all the evidence he desires to use in support of it,
in his affidavits filed with the notice of motion,
whether he is
moving ex parte or on notice to the respondent…’”.
[8]
The Applicant, in its founding affidavit unequivocally avers that the
“
First
Respondent, on the 24
th
December 2022 deprived the Applicant undisturbed possession of the
property by changing locks, subsequently closing the shop and
preventing applicants staff to entering the premises
[7]
.”
[9]
In the roundabout turn, later in the founding affidavit, it is
contended that it was either the First or Second
Respondent who
changed the locks of the property. The court a quo did not deal with
this apparent discrepancy. In my view, the
Court a quo seems to have
drawn an adverse inference on the fact that neither of the Respondent
accepted responsibility for changing
locks. In my view, the Court a
quo did not appreciate that it is not the case for the Applicant that
the Second Respondent changed
the locks and so caused the spoliation.
There was no obligation on the part of the Second Respondent to deny
an allegation which
was not directed to it.
[10]
The case for the Applicant was at all material times it had a
sublease agreement and had interactions and was spoliated
by the
First Respondent. it is its case that the Second Respondent was only
joined in these proceedings
ex
abudanti
cautela
[8]
.
The only reason given by the Applicant to cite the respondents “
as
co-respondents in this application is(sic) due to ignorance of their
identity
[9]
”,
not as possible co-spoliators as found by the Court a quo.
[11] That there is a
nexus between the First and Second Respondent is beyond dispute. Mr
Westraad is the director of both entities.
Both are separate legal
entities with distinct legal personae. The First and Second
Respondents have an existing lease agreement
on the property in
issue. The nexus ends there. The Court sitting in appeal will have to
deal with the issue of whether there is
any evidence to show that the
Second Respondent was instrumental in causing the First Respondent to
evict the Applicant. The nexus
between the Respondents, being one of
lessor and lessee as pleaded by the Applicant will have to be
explored to decide whether,
in the absence of any evidence, imputes
liability on the Second Respondent. I express serious reservation in
this regard. In my
view, the nexus as found by the Court a quo, is
irrelevant to the issue in this case. I accordingly find that the
Second Respondent
is entitled to the relief sought. I accordingly
make this order:
ORDER
1.
The Second
Respondent is granted leave to appeal to the Full Court of this
Division, the whole judgment and order of this court
granted on 25
May 2023;
2.
The costs
shall be costs in the Appeal.
P.
E. MOLITSOANE, J
On
behalf of the Applicant:
Adv.
D.M GREWER
Instructed
by
HJ
BOOYSEN Attorneys Inc.
BLOEMFONTEIN
On
behalf of the 2nd Respondent:
Adv.
J.S. Rautenbach
Instructed
by
Symington
De Kok Attorneys
BLOEMFONTEIN
[1]
(21424/2020)
[2020] ZAGPPHC 326(29 July 2020) paras [4] – [5].
[2]
[2021]
ZASCA 31(31 March 2021.
[3]
“
5.
Section 17(2)(d)
Act 10 of 2013
.”
[4]
“6.
Nova
Property Holdings Limited v Cobbett & Others
[2016] ZASCA 63:
2016 (4) SA 317
(SCA) para 8.”
[5]
“
9.
See
Smith v S
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA)
;
MEC
Health, Eastern Cape v Mkhitha
[2016] ZASCA 176
para 17.”
[6]
1980(1)
SA 313 (D & CLD) at 315 E-H and 316A.
[7]
Paginated
record, page 6 para 3.1 of the Founding Affidavit.
[8]
Paginated
record page 11 para 4.16 of the Founding Affidavit.
[9]
Ibid.8.