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[2023] ZAFSHC 400
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Dirk Lotter Vervoer (Pty) Ltd v Sutherland Transport (Pty) Ltd - Application for Leave to Appeal (922/2022) [2023] ZAFSHC 400 (17 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO. 922/2022
In
the matter between
DIRK
LOTTER VERVOER (PTY) LTD
APPLICANT
and
SUTHERLAND
TRANSPORT (PTY) LTD
RESPONDENT
IN
RE:
SUTHERLAND
TRANSPORT (PTY) LTD
APPLICANT
versus
DIRK
LOTTER VERVOER (PTY) LTD
RESPONDENT
CORAM:
NAIDOO J
HEARD
ON:
28 JULY 202
DELIVERED
ON: 17 OCTOBER 2023
JUDGMENT
- APPLICATION FOR LEAVE TO APPEAL
[1]
This is an application by the applicant,
Dirk Lotter Vervoer (Pty) Ltd, who was the respondent in the
main
application, for Leave to Appeal against the whole of the judgment,
which was delivered on 19 January 2023. For convenience,
I will refer
to the applicant as “Dirk Lotter” and the respondent,
Sutherland Transport (Pty) Ltd, who was the applicant
in the main
application, as “Sutherland”. Adv S Tsangarakis
represented the applicant in this court and Adv P Zietsman
SC,
represented the respondent.
[2]
The judgment was assailed, in summary, on the following grounds:
2.1
the court failed to appreciate the nature of the main application,
being one for liquidation of Dirk
Lotter on the basis that it was
unable to pay its debts. The application by Sutherland was based on a
“skeleton of averments”
and therefore lacked
bona
fides
;
2.2
the court did not deal with the load confirmation order at all in its
judgment, whereas it was of utmost
importance to do so, as it
indicates the open account which Dirk Lotter relies on;
2.3
Sutherland reacted to an e-mail sent by Dirk Lotter’s attorney,
even before the opposing affidavit
was served, and had identified the
issues between the parties. Sutherland’s attorneys indicated
they held instructions to
institute action for the (disputed) amount
of R255 006,75 as well as interest, and that the costs of the
present application
will be argued. The latter-mentioned amount
relates to standing charges in terms of the load confirmation order;
2.4
The court erred in dismissing the application to strike out, as the
application for the liquidation
by Dirk Lotter’s bookkeeper had
not been finalized and could not be used as proof that it could not
pay its debts’
2.5
the court erred in awarding punitive costs in respect of the
application to strike out and of the application.
[3]
The facts and background relevant to this were comprehensively set
out in the judgment and I do
not intend to repeat those details here.
I point out for the purposes of reiterating the reasons for the
judgment that the main
application was a hybrid application, seeking
an order for the liquidation of Dirk Lotter, alternatively payment by
Dirk Lotter
of the amount of R1 542 776.75. The application
was served on 4 March 2022 and three days later, on 7 March 2022,
Dirk
Lotter paid to Sutherland the amount R1 288 330.00.
Only thereafter, did Dirk Lotter engage with Sutherland and identify
issues between the parties. It did not deal at all with the issue of
its payment of the aforesaid amount, save to indicate that
the
shortfall related to standing charges, on which Sutherland was not
entitled to payment of interest. It was in respect of this
amount
that Sutherland indicated it would institute action against Dirk
Lotter, together with interest. The payment of over R1.2
million
clearly attracted interest, as it was taken that that Dirk Lotter
acknowledged its liability to Sutherland in that amount.
[4]
Sutherland furthermore, specifically averred that payment of that
amount by Dirk Lotter deprived
it of its
locus standi
to
proceed with the application for liquidation, hence it refrained from
doing so. The court set out its reasoning in detail, leading
to the
judgment it handed down. The grounds upon which Dirk Lotter now seeks
to assail the judgment, cannot in my view be sustained.
Many of the
submissions made in respect of this application were made during the
hearing of the main application, and were dealt
with in the judgment.
[5]
I mention that it would have been inappropriate for this court to
deal with the issue of the load
confirmation order, as that would
have been the subject matter of the action that Sutherland indicated
it would institute. This
court was therefore, concerned only with the
issue of the payment of interest on the amount that Dirk Lotter
acknowledged itself
to be liable to Sutherland for, and the striking
out application which required final determination.
[6]
It is by now trite that Section 17 of the Superior Courts Act 10 of
2013 (the Act), 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).
[7]
It is clear from section 17(I), set out above, that the situation is
now somewhat different from
the previous dispensation, where an
applicant was 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. An applicant for
leave to appeal is now required to convince
the court that there is a reasonable prospect of success and not
merely a possibility
of success.
[8]
It is well established in our law that section 17 holds an applicant
seeking leave to appeal to
a higher threshold than previously, to
convince a court to grant leave to appeal. In
The Mont Chevaux
Trust v Tina Goosen + 18 2014 JDR LCC,
Bertelsmann J held that:
“
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….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.”
Mont
Chevaux has been followed in a number of decisions. See
Matoto
v Free State Gambling and Liquor Authority (4629/2015)
[2017] ZAFSHC
80
(8 June 2017)
, The Full Court in
Acting National Director of Public
Prosecutions and Others v Democratic Alliance (19577/2009) [2016]
ZAGPPHC 489 (24 June 2016)
also cited
Mont Cheveau with approval.
[9]
All the points raised by Dirk Lotter were done after payment of the
money to Sutherland. It was
much later, when it was clear that
Sutherland intended to proceed and recover interest on the amount
paid, that the application
was opposed. Notably, Dirk Lotter has,
even now, failed to explain its payment of R1 288 330.00 to
Sutherland, and simply
ignores the fact that it would be liable for
interest on that amount. I do not propose to deal further with the
grounds of appeal,
save to say that the reasoning of the court is
abundantly clear from the judgment. In my view, there exists no
reasonable prospect
that another court would come to a different
conclusion or find differently to this court.
[10]
In the circumstances the following order is made:
The application for leave
to appeal is dismissed with costs.
S
NAIDOO J
On
behalf of the Applicants:
Adv S
Tsangarakis
Instructed
by:
Honey
Attorneys
1
st
Floor Honey Chambers
Northridge
Mall
Kenneth
Kaunda Road
Bloemfontein
(Ref:
A Prinsloo/fk/133404)
On
behalf of the Respondent:
Adv P
Zietsman SC
Instructed
by:
McIntyre
Van Der Post
12
Barnes Street
Westdene
Bloemfontein
(Ref:
BAD001/AD Venter/ljb)