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[2023] ZAKZPHC 68
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Bright Idea Projects 66 (Pty) Ltd t/a All Fuels v Former Way Trade and Invest (Pty) Ltd t/a Premier Service Station and Others (283/2018P) [2023] ZAKZPHC 68 (28 July 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
283/2018P
In
the matter between:
BRIGHT
IDEA PROJECTS 66 (PTY) LTD
t/a
ALL
FUELS APPLICANT
and
FORMER
WAY TRADE AND INVEST (PTY) LTD FIRST RESPONDENT
t/a
PREMIER SERVICE STATION
LEE
BENTZ SECOND
RESPONDENT
STEPHANIE
JEAN VAN NIEKERK THIRD
RESPONDENT
K
SWART AND COMPANY FOURTH
RESPONDENT
FIRSTRAND
BANK LIMITED FIFTH
RESPONDENT
ROWAN
ASHLEY LONG N.O. SIXTH
RESPONDENT
ZAHEER
CASIM N.O. SEVENTH
RESPONDENT
Coram:
Mossop J
Heard:
28 July 2023
Delivered:
28 July 2023
ORDER
The
following order is granted:
1.
The application for leave to appeal is dismissed with costs.
JUDGMENT
Mossop
J
:
[1]
This is an application for leave to appeal a judgment that I
delivered on 27
June 2023. I heard the matter in Pietermaritzburg,
but as it happened this session I was stationed at the Durban High
Court. I
decided that it would be more convenient for counsel, who
are both Durban based, if the application for leave to appeal was to
be heard in Durban. A time convenient to both counsel was
therefore arranged before the commencement of the regular working
day
to hear the application. I am indebted to them for making themselves
available.
[2]
The applicant in the application for leave to appeal was the
applicant in the
application proceedings that led to my judgment. The
appearances this morning are as before, with Mr Ramdhani SC appearing
for
the applicant and Mr Harrison appearing for the first, sixth and
seventh respondents. Counsel are thanked for their helpful
submissions.
[3]
In essence, in my judgment against which leave to appeal is sought, I
dismissed
the applicant’s application insofar as it was
premised on the mandament van spolie. I adjourned the applicant’s
alternative
claim based on the condictio furtiva, and did the same in
respect of the first respondent’s counter application. I
granted
the sixth and seventh respondents’ counter application
and directed that all monies then being held by the fourth and fifth
respondents be paid over to the sixth and seventh respondents. I
finally directed that there would be no order as to costs.
[4]
While this is an application for leave to appeal, I had no prior
sight of the
grounds upon which the application was premised. While
there was a notice from the applicant that it intended to seek leave
to
appeal my judgment and that it would later deliver its grounds of
appeal, no such delivery occurred to me. I do not doubt that the
notice of application for leave to appeal containing the grounds of
appeal was delivered. I proceeded to hear argument on the application
and then adjourned for a short while to give myself an opportunity to
fully and properly consider the grounds and to digest them.
I also
took the opportunity to consider a case handed up by Mr Harrison.
[5]
Section 17
of the
Superior
Courts Act, 10 of 2013
(the Act) regulates applications for leave
to appeal from a decision of a High Court. It 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.'
[6]
Prior to
the enactment of the Act, the applicable test in an application for
leave to appeal was whether there were reasonable prospects
that the
appeal court may come to a different conclusion than that arrived at
by the lower court. The enactment of the Act has
changed that test
and has significantly raised the threshold for the granting of leave
to appeal.
[1]
The use of the
word ‘would’ in the Act indicates that there must be a
measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against.
[7]
Leave
to appeal may thus only be granted where a court is of the opinion
that the appeal would have a reasonable prospect of success,
and
which prospects are not too remote.
[2]
As
was stated by Schippers JA in
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
:
‘
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 a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.’
[8]
I am firmly of the view that the principal relief claimed by the
applicant based
upon the mandament van spolie is unsound and not
justified in law. The authorities make it plain that the money in the
applicant’s
bank account did not belong to it. The money
belonged to the applicant’s bankers, and they consequently
possessed it, not
the applicant. As possession is the cornerstone of
a claim based upon the mandament, I am satisfied that no other court
would come
to a different conclusion on this issue than the one to
which I came. I acknowledge that Mr Ramdhani is correct in his
submission
that there is a dearth of authority on the point, as I
noted in my judgment. I fear that this is because the principles
attaching
to the mandament are well known as the principles attaching
to money held in a bank account. There are no such decisions because
the mandament does not apply.
[9]
As regards the applicant’s alternative cause of action based
upon the
condictio furtiva, the first respondent’s answer to
that was presented in the form of a counter application in which it
asserted
that it had been justified in reversing the payments that it
made because the applicant had allegedly overcharged it. The
practical
difficulty was that the first respondent was in winding up
and the sixth and seventh respondents had at the time that the papers
in the application were finalised not formed a view on whether there
was any merit in either party’s position. I considered
therefore that it would be in the interests of justice if the
applicant’s alternative relief and the first respondent’s
counter application were adjourned. I was not prepared to decide an
issue on which I had not heard argument from both parties.
The
consequences of that decision, as pointed out by Mr Harrison, is that
I made no final determination of the counter application
or the
applicant’s claim based upon the condictio furtiva and they are
consequently not appealable.
[10]
As regards
the sixth and seventh respondent’s counter application, it
appears to me that the principles enunciated by Cachalia
JA in
Trustees,
Estate Whitehead v Dumas and another
,
[4]
deal exactly with the principles at play in this matter. I can
conceive of no other court holding otherwise. As such, as much as
it
may rankle the applicant, the sixth and seventh respondent’s
counter application had to succeed.
[11]
After a thorough consideration of the grounds upon which leave to
appeal is sought, I remain unpersuaded
that there are reasonable
prospects that another court would come to a different conclusion
than the one to which I came, this
being particularly so given the
facts that I found to be established and given the increased
threshold that applications for leave
to appeal now face.
[12]
I accordingly grant the following order:
The
application for leave to appeal is refused with costs.
MOSSOP
J
APPEARANCES
Counsel
for the applicant: Mr
D
Ramdhani SC
Instructed
by: Norton
Rose Fulbright
Umhlanga
Locally
represented by:
Tatham
Wilkes Attorneys
200
Hoosen Haffejee Street
Pietermaritzburg
Counsel
for the first respondent: Mr G
Harrison
(in liquidation), sixth
and
seventh respondents
Instructed
by: Minnie
and Du Preez Attorneys
Care
of: Shepstone
and Wylie
1
st
Floor,
ABSA House
15
Chatterton Road
Pietermaritzburg
Date
of Hearing: 28 July 2023
Date
of Judgment: 28 July 2023
[1]
Public
Protector of South Africa v Speaker of the National Assembly and
Others
(8500/2022) [2022] ZAWCHC 222 (3 November 2022) para 14.
[2]
Ramakatsa
and Others v African National Congress and Another
[2021]
JOL 49993
(SCA)
para [10]
[3]
MEC
for Health, Eastern Cape v Mkhitha and Another
[2016] ZASCA 176 para 17.
[4]
Trustees,
Estate Whitehead v Dumas and another
[2013]
ZASCA 19
;
2013 (3) SA 331
(SCA).