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2023
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[2023] ZAFSHC 408
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Marais and Another v Klopper N.O. and Others - Leave to Appeal (4786/2019) [2023] ZAFSHC 408 (26 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 4786/2019
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ZELNA
MARAIS
1
ST
APPLICANT
PETRUS
JACOBUS DELPORT
2
ND
APPLICANT
and
WOUTER
KLOPPER N.O.
1
ST
RESPONDENT
DANIEL
FRANCOIS PRINSLOO N.O.
2
ND
RESPONDENT
ADRIE
WIESNER HECHTER N.O.
3
RD
RESPONDENT
CORAM:
MTHIMUNYE, AJ
HEARD
ON:
14 AUGUST 2023
JUDGMENT
BY:
MTHIMUNYE, AJ
DELIVERED ON:
26 OCTOBER 2023
[1]
This is an application for leave to appeal to the full bench of the
Free State Division of the
High Court against part of the order and
judgement of my sister Mahlangu AJ handed down on 6 March 2023. In
the assailed judgement,
Mahlangu AJ found in favour of the
Respondents (Plaintiffs in the main action) in the following
terms:
“
1
. …
2.
The Plaintiffs’ claim is granted.
3.
The second defendant is ordered to pay the plaintiffs an
amount of R235 875.00.
4.
The second defendant is ordered to pay the plaintiffs’
costs on an attorney and client scale.”
[2]
The judgment of Mahlangu AJ is assailed mainly on the basis that she
erred in finding that the respondents
had proven their claim again
the applicants in the amount of R235 875.00; that the second
applicant is therefore liable for
payment thereof on the basis of the
second undertaking for the first applicant’s failure to comply
with the second Deed of
Sale agreement; that the respondents are
entitled to agent’s commission; and further awarding costs
against the second
defendant on an attorney and client scale. The
grounds are fully enunciated in the applicant’s application for
leave dated
27 March 2023.
[3]
The brief background of the matter is that on 4 March 2016 the
respondents entered into a sale
of property agreement (“the
first agreement”) with the first applicant. On 2 June 2018 the
second applicant signed
an undertaking that he would take over the
obligations of the first applicant in relation to the first
agreement. The first applicant
failed to comply with the first
agreement and the respondents cancelled it on 17 October 2018. On 3
November 2018 the respondents
entered into the second agreement with
the first applicant, pursuant to which the second applicant issued an
undertaking similar
to the one relating to the first agreement. The
first applicant failed to comply with the second agreement and so did
the second
applicant in respect of his undertaking. The respondents
then instituted action against the first and second applicants for
recovery
of contractual damages allegedly suffered as a result of the
applicants’ breach of contract. Mahlangu AJ found in favour of
the respondents, which finding is the subject of this application.
[4]
The applicants contend that the respondents failed to prove the
essentialia
of their claim on the preponderance of
probabilities and did not prove such damages. They argue that
consequential damages can
only be claimed if the parties actually or
presumptively contemplated that such damages would result from breach
of a particular
contract, such contemplation must be ascertained at
the time the contract is concluded. Further, the applicants argue
that the
agent’s commission was not part of the initial
agreement between the parties and as such, the first applicant cannot
be held
liable for consequential damages of the second sale. In this
regard, the applicants contend that the judgment of Mahlangu AJ
contradicts
the test for quantification of damages as applied in our
law.
[5]
In opposing this application, the respondents submit that their claim
was proven by
the evidence of Mr Deon Rossouw and Pieter Muller,
whose evidence was never disputed by the applicants. In fact, the
applicants
did not even cross-examine Mr Muller, who testified as a
qualified expert. As the end of this evidence the Respondents closed
and
so did the applicants, without leading any evidence. The
respondents aver that by so doing, the applicants accepted Mr
Muller’s
evidence, which stood uncontested and was also
accepted by the court. Further, it was submitted that the respondents
had a duty
to mitigate their damages when the applicants defaulted
hence they procured the services of an expert agent to market the
property,
which then gave rise to the commission which the first
applicant was then held responsible for. The respondents argue that
to avert
liability in respect of the commission, the applicants would
have to prove that the steps taken by the respondents to mitigate the
damage were not reasonable.
[6]
The substantive law pertaining to applications for leave to appeal is
encapsulated in
Section 17
(1) of the
Superior Courts Act 10 of
2013
, and sets out the test as follows:
“
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.”
[7]
Section 17(1)
clearly sets out 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 (21424/2020) [2020] ZAGPPHC 326 (29 July
2020)
at para [4]- [5] 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. The applicant must show that another court “would”
come to a different conclusion
in its favour’”
.
[8]
This dictum serves to emphasise a vital point: Leave to appeal is not
simply for the
taking. A balance between the rights of the party
which was successful before the court
a quo
and the rights of
the losing party seeking leave to appeal need to be established so
that the absence of a realistic chance of
succeeding on appeal
dictates that the balance must be struck in favour of the party which
was initially successful.”
[9]
The essence of this appeal is on the application of legal principles
in that the applicants contend
that the assailed judgment contradicts
the test for quantification of damages as applied in our law. In the
event that the applicants
are correct, it might as well be that
another court would arrive at a different conclusion, and as such I
am persuaded that this
application for leave must succeed.
Consequently,
I make the following Order:
1.
Leave to appeal to a full bench of the Free State Division of the
High Court is granted.
2.
Costs shall be costs in the cause.
D.
P. MTHIMUNYE, AJ
For
the Applicant:
Adv J
Ferreira
Instructed
by
Noordmans
Inc.
Bloemfontein
For
the Respondents:
Adv.
F.G. Janse Van Rensburg
Instructed
by:
J G
Kriek & Cloete Attorneys
Bloemfontein