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2024
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[2024] ZAGPJHC 247
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De Jongh v Philippides and Others (2023-008709) [2024] ZAGPJHC 247 (11 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
2023-008709
1.R
EPORTABLE:
NO
2.
OF
INTEREST TO OTHER JUDGES: NO
3.
REVISED.
YES
11
March 2024
In
the matter between:
ANNIE
JEANETTA DE JONGH, HENDRIK LOURENS DE JONGH AND HERMAN KRIEL NNO
(Trustees
of the De Jongh Family Trust)
Applicant
and
PHILIPPIDES,
ANDREW
First
Respondent
HARPER,
LEIGH
DOROTHY
Second
Respondent
LEIGH
HARPUR
INC
Third
Respondent
This
judgment was handed down electronically by circulation to the
parties' and/or the parties' representatives by email and by
being
uploaded to Case Lines. The date and time for hand-down is deemed to
be 10h00 on 11 March 2024.
JUDGMENT
(LEAVE TO APPEAL)
WANLESS
J
Introduction
[1]
In this application the Applicant, namely the De Jongh Family Trust
(“the Applicant”)
seeks leave to appeal, either to
the Supreme Court of Appeal
(“SCA”)
or the Full
Court of this Division, against the judgment and order of this Court
granted on 14 November 2023. The application is
opposed by the First
Respondent
(“the First Respondent”).
[2]
The correct principles of law to be applied in such an application in
terms of section 17 of the
Superior Court Act 10 of 2013 (“the
Act”)
are trite. This brief judgment (as necessitated by
the very nature of the application itself) will not be burdened
unnecessarily
by setting out same and referring to the authorities
dealing therewith.. Leave to appeal should only be granted if this
Court is
satisfied that an appeal court would (not could) come to a
different finding than it did in its judgment and would grant a
different
order.
Grounds
of appeal
[3]
These grounds are clearly set out in the “
Applicant’s
Application for Leave to Appeal”.
Once
again, in order not to burden this judgment unnecessarily, those
grounds will not be set out herein. To do so would serve little
or no
purpose.
[4]
What is clearly apparent therefrom (this was also carried forward in
the Applicant’s Heads of Argument filed prior
to the hearing of
this application and during the course of argument before this Court
at the hearing of the application) is that
the Applicant contends
that the interpretation arrived at by this Court in respect of
certain clauses of the written agreement
of sale entered into between
the parties
(“the agreement”)
was incorrect. On
that basis, it was submitted by the Applicant that another Court
would place a different interpretation upon
the relevant clauses
which would result in that court coming to a different finding,
thereby setting aside the order granted by
this Court and replacing
it with an order effectively granting the Applicant the relief it
sought in the Opposed Motion heard by
this Court.
[5]
More particularly, it is the Applicant’s submission that
upon a proper interpretation of the agreement this Court
was
incorrect and that a court of appeal would interpret the agreement
differently (correctly) and find that when the Applicant
paid an
amount to the appointed conveyancer in terms of the agreement, this
payment was not made to “
secure”
the balance of
the purchase price (as held by this Court) but was made to “
pay”
the balance of the purchase price. It was further submitted to this
Court, on behalf of the Applicant during the course of argument
at
the hearing of this application, that the strength of the Applicant’s
application for leave to appeal also lay in the
fact that this matter
involves the interpretation of an agreement. Following therefrom, it
was submitted by Counsel for the Applicant
that “
the Law
Reports are littered with successful appeals against statutory and
contractual interpretation and that the iterative process
of
interpretation is fraught with difficulties”.
Discussion.
[6]
Whilst (broadly speaking) the matter involves the interpretation of
the agreement and the various grounds of appeal (as
dealt with above)
all ultimately depend upon the manner of that interpretation, this
Court, in considering this application, has
nevertheless had careful
regard to each of those grounds. Having done so, this Court is of the
opinion that there is nothing in
either the manner in which this
Court carried out its interpretation of the agreement or in that
interpretation itself, that would
cause another Court to interfere
with the findings made by this Court.
[7]
As to the submission made on behalf of the Applicant that in light
of the fact that this matter is essentially one of
interpretation,
leave to appeal should be more readily granted, this Court cannot
agree therewith. In this regard, this Court cannot
accept that this
is a general principle of our law. In addition thereto, this Court
finds that the authority relied upon by the
Applicant does not
support such a proposition. Further, it is the opinion of this Court
that the very fact that this matter involves
interpretation of a
contract, provided this Court has properly applied the correct
principles of interpretation and not arrived
at an interpretation
which is either non-sensical or does not give the agreement true
business efficacy, then it is highly unlikely
that a court of appeal
would interfere with the decision of this Court; set the findings of
this Court aside and replace same with
its own interpretation. To do
so, would not be in accordance with our general principles in respect
of appeal, in that an appeal
court will only do so if it is clear
that the court
a quo
misdirected itself in a material manner
or was clearly wrong in reaching the decision that it did.
[8]
Further, with regard to the submission that the Law Reports are
“
littered”
with examples
where
courts of appeal have interfered in respect of matters
involving interpretation, it would seem to this Court that the
authorities equally deal with a number of instances
where
such courts are reluctant and have declined to do so.
[9]
Finally on this point, this Court must agree with the submissions
made on behalf of the First Respondent that this Court,
in coming to
the findings that it did, properly considered and applied the general
principles applicable to the interpretation
of contracts to the
largely common cause facts. Certainly, there is nothing in that
consideration or application that can support
a finding that another
court would come to a different conclusion based on the same
principles of law and findings of fact.
Conclusion
[10]
In light of the aforegoing, this application for leave to appeal must
be dismissed. This Court may also add that in making
such an order it
further bears in mind the oft repeated narrative of the courts of
appeal that the court
a quo
should be slow to grant
applications for leave to appeal in matters where the prospects of
success are not good. This avoids the
unnecessary burdening of the
rolls of the appeal courts.
[11]
As to the issue of costs, there are no unusual circumstances
pertaining to this matter that would cause this Court, in
the
exercise of its general discretion pertaining to the issue of costs,
to deviate from the trite principle that costs should
normally follow
the result. In the premises, the Applicant should be ordered to pay
the costs of the application for leave to appeal.
Order
[12]
This Court makes the following order:
1. The application for leave to
appeal is dismissed.
2. The Applicant is ordered to
pay the costs of this application.
B.C.
WANLESS
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Heard:
1 February 2024
Judgment:
11 March 2024
Appearances
For
Applicant:
Adv. E. L. Theron
SC
Adv. J. G. Botha
Instructed
by:
Postma Attorneys
For
Respondent:
Adv. M. Smit
Instructed
by:
Martin Pike Incorporated
Vos Attorneys