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2024
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[2024] ZAGPPHC 342
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Penthouse Holdings (Pty) Ltd v Naidoo (Leave to Appeal) (120617/2023) [2024] ZAGPPHC 342 (3 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 120617/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS JUDGES: NO
(3)
REVISED
5
April 2024
In
the matter between:
PENTHOUSE
HOLDINGS (PTY) LTD
Applicant
and
SANDIRAN
JASON
NAIDOO
Respondent
JUDGMENT:
LEAVE TO APPEAL
NGALWANA
AJ
[1]
In this application for leave to appeal against a judgment and order
made by this
court on 4 December 2023 the applicant contends,
essentially, that this court misdirected itself on principles
applicable in anti-spoliation
applications by venturing beyond its
remit in determining such applications. It also contends that in
striking the application
for anti-spoliation order this court adopted
a wrong view of the facts.
[2]
The Respondent opposes the application. It says the mooted appeal has
no prospects
of success.
[3]
I agree. The Applicant appears to misunderstand the thrust of the
judgment made on
4 December 2023. The application was struck off the
roll for lack of urgency. The Applicant failed in its papers and in
argument
to show that it would not be able to obtain substantial
redress in due course. This court expressly declined to embark on a
determination
of the merits of the Applicant’s case. It said:
“
Counsel also addressed me on the merits of the case. I am
grateful to them both for their able and scholarly address. However,
it
is unnecessary to engage with the merits of the Applicant’s
case for I am satisfied that its application falters at the first
hurdle in urgent court: urgency”
.
How the Applicant arrives at a
conclusion that its application was dismissed on the merits seems to
be a result of a misunderstanding
of the judgment.
[4]
The grounds for striking the application off the roll for lack of
urgency are clearly
explained in the main judgment. The court will
not repeat those here. There was no referral of disputes of fact to
oral argument.
This court expressly observed: “
That is not
the stuff of which urgent court is made”
. There was no
determination of the parties’ rights
inter se
. The idea
of a builder’s lien as a basis for urgency was not of the
court’s creation. It was the Applicant that introduced
it. So,
the argument had to be considered. It was and was found wanting for
reasons explained in the main judgment. This was not
an exercise in
the determination of the parties’ rights
inter se
.
It was an exercise in the determination of the basis advanced by the
Applicant for urgency.
[5]
The Respondent asks for costs on a punitive attorney and client scale
as it did in
the main application. I declined the request on the
first occasion for reasons given in the main judgment. Now the
Respondent contends
that this application for leave to appeal is an
abuse of court process and is reckless. I am inclined to agree.
The grounds
of appeal bear no rational relation to the judgment and
order granted in the main judgment. While the main application was
struck
off the roll for lack of urgency, the Applicant now approaches
this court on the basis that its application was dismissed on its
merits despite clear language in the main judgment to the contrary.
It would be unfair and not in the interests of justice
to call upon
the Respondent to pay any portion of the costs occasioned by this
patently meritless application.
[6]
I should mention, in closing, that I invited the parties to submit
heads of argument
that would assist the court in assessing whether it
would be necessary, having considered the written argument, to hear
oral argument.
In addition, and after receiving written argument from
both parties, I requested short submissions on what specific value
oral
argument would add to the determination of this application
which cannot be gained from the written argument, considering costs
and the fact that this is not a re-argument of the main case but an
application for leave to appeal. The Applicant took the view
that
oral argument would add value but did not explain what that value
would be. It did not address the costs question. The Respondent
took
the opposite view. In the end, taking into account the cost factor to
both parties, the full set of heads submitted by both
parties, and
the nature of the issues before me, I determined that oral argument
would not be necessary.
Order
In the result, I make the following
order:
1.
The application for leave to appeal is
dismissed.
2.
The Applicant is to pay the Respondent’s
costs on attorney and client scale, including costs consequent upon
the appointment
of Counsel.
V NGALWANA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT,
PRETORIA
Delivered: This judgement was
prepared and authored by the Judge whose name is reflected and is
handed down electronically
by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on
CaseLines. The date for hand-down is deemed
to be 03 April 2024.
Date
of heads: 15
February 2024 (Applicant)
13 March 2024
(Respondent)
Date
of judgment: 03 April 2024
Appearances:
Attorneys for the
Applicant:
Machaba Attorneys
Counsel for the
Applicant:
M Kufa (079 305
6111)
P Sila
(083 648 3580)
Attorneys for
Respondent:
LAZZARA LEICHER Inc
Counsel for
Respondent:
M Cajee (082 771
4458)