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[2024] ZAGPJHC 324
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Venter and Another v Astfin (SA) (Pty) Limited and Others (2021/25209) [2024] ZAGPJHC 324 (28 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
1. REPORTABLE:
2. OF INTEREST TO OTHER
JUDGES:
3.REVISED:
CASE
NO
:
2021/25209
DATE
: 28
MARCH 2024
In the matter between:
ANCHEN
VENTER First
Applicant
ANCHEN VENTER
N.O. Second
Applicant
And
ASTFIN (SA) (PTY)
LIMITED First
Respondent
JOHANNES GEORGE
VENTER Second
Respondent
JOHANNES GEORGE VENTER
N.O. Third
Respondent
JONATHAN BARON
N.O. Fourth
Respondent
SKIATHOS B2 PROPERTY
INVESTMENTS CC Fifth
Respondent
NRB CAPITAL SOLUTIONS
(PTY) LIMITED Sixth
Respondent
FOREST DAWN SYSTEMS
(PTY) LIMITED Seventh
Respondent
NRB SERVICES (PTY)
LIMITED Eighth
Respondent
SHELF INVESTMENTS NO.
32 (PTY) LIMITED Ninth
Respondent
NRB RENTAL SOLUTIONS
(PTY) LIMITED
Tenth Respondent
SCRAP-N4 AFRICA (PTY)
LIMITED Eleventh
Respondent
J KWADRANT (PTY)
LIMITED
Twelfth Respondent
PLANET FINANCE
CORPORATION (PTY) LIMITED
Thirteenth Respondent
SOUTH AFRICAN REVENUE
SERVICE Fourteenth
Respondent
Coram:
Ternent AJ
Heard
on
: 29 February 2024
Delivered:
28 March 2024
Summary:
Delivered:
This judgment 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 at 15h00 on 28 March 2024.
JUDGMENT LEAVE TO APPEAL
TERNENT, AJ
:
[1]
As referred to in my judgment, both applicants brought an application
for leave to appeal dated 10 November 2022
[1]
.
This application sought leave to appeal the order dismissing the
contention that the application had become settled between the
applicants and the first respondent.
[2]
Subsequently, a further application for leave to appeal was delivered
by the first applicant alone dated 2 October 2023.
[2]
[3]
Mr Thompson, who appeared in the application for leave to appeal,
informed me that he was only representing the first applicant
and had
only been briefed with the second application for leave to appeal. He
informed me that I should only have regard to the
second application
for leave to appeal and that he was limiting his argument to only one
ground raised in the application for leave
to appeal
[3]
and dealt with in his heads of argument, namely that in the
face of the material disputes of fact the Court “
could
rightfully (and should have) then and there have dismissed the
application”
.
[4]
In this regard reliance was placed on
Mashisane
v Mhlauli
[4]
which is authority for the well-known principle that in the face of
existing disputes of fact an application may well be dismissed
rather
than being referred to evidence or trial.
[5]
As submitted to me by both counsel, representing the respective
respondents, the first applicant cannot appeal the reasons for
an
order but only the order itself to the extent that it is contended
that the order is wrong. This is a trite principle
succinctly
set out in a number of cases and, also in
Mass
Stores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd,
as
follows
:
[5]
“
[59]
Therefore, assuming that Masstores
establishes that this Court has jurisdiction and that it
is in the
interest of justice to grant leave, the appeal can only succeed if it
is shown that the order issued was not supported
by the facts on
record and the application of the relevant law to them. A
decision of a court is not overturned merely because
wrong reasons
were invoked to support it. In our law no appeal lies against
reasons in a judgment.
[Footnote omitted]
Instead, the
appeal lies against an order. Hence it often occurs that an
appeal is dismissed but for reasons different from
those advanced by
the lower court whose judgment is the subject of an appeal.”
[6]
As succinctly captured by Mr Stadler the complaint appears to be that
I should have dismissed the application “
earlier rather than
later
”. And logically having dismissed the application, the
first applicant is armed with the very order that she sought.
[7]
The first applicant did not seek leave to appeal the costs order that
was made by me.
[8]
To the extent that it is contended by the first applicant that there
were material disputes of fact and that in the face thereof,
I should
have not ventured into determining these disputes this is simply
incorrect. As set out in my judgment, the first
applicant’s
case is misconceived and in the absence of
bona fide
disputes
of fact, in accordance with the
Plascon-Evans
Rule, the
version of the first respondent was not only probable but decisive of
the application, and warranted a dismissal of the
application. I do
not agree that this Court simply rubberstamps a referral to trial
without a consideration of the alleged disputes.
[9]
As such, I am of the view that the application for leave to
appeal is equally ill-considered and should not have been brought
in
the first place. The application for leave to appeal is unmeritorious
as a result. Although not submitted in argument, but rather
in Mr
Thompson’s heads of argument, there are also no compelling
reasons for leave to appeal be granted, as provided
in section
17(1)(a)(ii) of the Supreme Court Act. Furthermore, there is
also no practical effect in overturning the order
in the face of the
concession.
[10]
The test, as provided for in section 17(1)(a)(i) of the High Court
Act, is that leave to appeal may only be granted where the Judge
concerned is of the opinion that the appeal would have a “
reasonable
prospect of success.”
[11]
In this regard the Supreme Court of Appeal in
Notshokovu
v S
[6]
confirmed that “
It
is clear that the threshold for granting leave to appeal against the
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.”
[12]
The Supreme Court of Appeal has explained that the prospects of
success must not be remote, but there must exist a reasonable
chance
of succeeding. An applicant who applies for leave to appeal
must show that there is a sound and rational basis for
the conclusion
that there are prospects of success.
[7]
An applicant must convince the Court on proper grounds that he has
prospects of success on appeal and those prospects are
not remote,
but have a realistic chance of succeeding.
[13]
More is required than a mere possibility of success, or that the case
is arguable on appeal, or that the case cannot
be categorised as
hopeless.
[8]
In the
decision of
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
[9]
Wallis, JA observed that a Court should not grant leave to appeal and
indeed is under a duty not to do so where the threshold which
warrants such leave has not been cleared by an applicant in an
application for leave to appeal:
“
[24]
… The need to obtain leave to appeal is a valuable tool in
ensuring that scarce judicial resources
are not spent on appeals that
lack merit. It should in this case have been deployed by refusing
leave to appeal.”
[14] Accordingly,
it is required of a lower Court that it act as a filter to ensure
that the Appeal Court’s time is
spent only on hearing appeals
that are truly deserving of its attention and that the test for the
grant of leave to appeal should
thus be scrupulously followed.
[15] Both counsel
for the respondents sought that I make an order against the first
applicant on a punitive scale, as I did
in the main application.
[16] I am of the
view that the application for leave to appeal has simply delayed the
finality of the order that was given
by me disposing of the main
application once and for all. In the light of the decision to raise a
number of ill-founded grounds
of appeal, which were correctly
not pursued by Mr Thompson, it seems to me that the respondents have
been put to unnecessary time
and costs, all of which could have been
averted if this application for leave to appeal had not been brought
or pursued.
[17] Mr Thompson
submitted to me that a punitive costs order should not be granted in
that, on reflection and a second opinion,
the first applicant had
been given sage advice, which she accepted, that the grounds raised
were in the main inappropriate and
argument should be limited to the
ground raised above. This ground however, not only was not
raised in the application for
leave to appeal but in any event, also
does not pass the threshold required. Perhaps, it would have been
appropriate for the first
applicant to have not proceeded at all.
[18]
In these circumstances, I am of the view that the first applicant
should bear the costs of this hapless application for
leave to appeal
on an attorney client basis. As oft quoted:
[10]
“
An order is
asked for that he pay the costs as between attorney and client. Now
sometimes such an order is given because of something
in the conduct
of a party which the Court considers should be punished, malice,
misleading the Court and things like that, but
I think the order may
also be granted without any reflection upon the party where the
proceedings are vexatious, and by vexatious
I mean where they have
the effect of being vexatious, although the intent may not have been
that they should be vexatious. There
are people who enter into
litigation with the most upright purpose and the most firm belief in
the justice of their case, and yet
whose proceedings may be regarded
as vexatious when they put the other side to unnecessary trouble and
expense which the other
side ought not to bear. That I think is
the position in the present case.”
[19] Accordingly, I
make the following order:
19.1 The
application for leave to appeal is dismissed.
19.2 The first
applicant is ordered to pay the costs of the first to thirteenth
respondents on the attorney client scale.
P V TERNENT
Acting Judge of the
High Court of South Africa
Gauteng Division,
Johannesburg
HEARD ON
:
29 February 2024
DATE OF
JUDGMENT:
28 March
2024
FOR FIRST
APPLICANT:
Mr C Thompson
Email
FOR SECOND
APPLICANT: No
appearance
INSTRUCTED BY
:
Mr Bihl
Erasmus
Motaung inc.
Email:
emil@em.law.za
/
sonja@em.law.za
FOR FIRST
RESPONDENT: Mr
E Kromhout
Email:
kromhout@law.co.za
INSTRUCTED BY
:
TWB – Tugendhaft Waprick Banchetti & Partners
Email
:
oshy@twb.co.za
/
helen@twb.ca.za
/
anabela@twb.co.za
FOR SECOND TO THIRTEENTH
RESPONDENTS
:
Mr S M Stadler : Adams & Adams
Ms
S Van Niekerk
Email
: Shani.vanniekerk@adams.africa
[1]
CaseLines, 037-1 to 037-4
[2]
CaseLines, 037-6 to 037-12
[3]
CaseLines, 037-7 at para 2
[4]
(903/2022)
[2023] ZASCA 176
(14 December 2023) at para [26]
[5]
2017 (1) SA 613
(CC) at para [59] and also
South
African Reserve Bank v Khumalo
2010
(5) SA 449
(SCA) and
Tecmed
(Pty) Ltd v The Minister of Health
2012
JDR 0821 (SCA)
[6]
[2016] ZASCA 112
(7 September 2016)
[7]
Ramakatsa
and Others v African National Congress and Another
(724/29)
[2021] ZASCA 31
(31 March 2021)
[8]
S
v Smith
2012
(1) SACR 567 (SCA)
[9]
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
2013 (6) SA 520 (SCA)
[10]
In
re
Alluvial
Creek
1929
CPD 532
at 535