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2024
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[2024] ZAFSHC 101
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Goldex 16 (Pty) Ltd v Body Corporate of Waterford Golf and River Estate SS139/2006 (3979/2016) [2024] ZAFSHC 101 (9 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no.: 3979/2016
In
the matter between:
GOLDEX
16 (PTY) LTD
Applicant
And
BODY
CORPORATE OF WATERFORD GOLF
AND
RIVER ESTATE SS139/2006
Respondent
CORAM:
VAN
ZYL, J
HEARD
ON:
9 OCTOBER 2023
DELIVERED
ON:
9
APRIL 2024
[1]
This is an application for leave to appeal.
Succinct
background:
[2]
An application between the parties which became known as “
the
main application”
served before Daffue, J. The present
applicant was also the applicant in the main application and the
present respondent opposed
the application and also filed a
counter-application in the main application. Daffue, J dismissed the
main application with costs
and he also dismissed prayer 1 of the
counter-application. He, however, issued the following order in the
counter-application (quoted
in its later amended form):
“
4.1
The applicant is liable to pay the first respondent levies in respect
of all vacant premises held by the applicant, (i.e.
the areas of the
common property demarcated for future construction of houses), on the
same basis as other subsequent owners/developers
of vacant stands
over which they held and hold real rights of extension, such levies
to be calculated and payable on a pro rata
basis with owners of other
sections.
4.2
The quantum of first respondent’s monetary claim against
applicant is referred to trial, the counter-application
to stand as a
simple summons and further pleadings to be exchanged in terms of the
Uniform Rules of Court.’
2) Each
party shall be liable for its own costs.”
[3]
The applicant subsequently filed an application which became known as
“
the second stay application
” in which the relief
sought in terms of the Amended Notice of Motion, was the following:
“
1.
Declaring that paragraph 4.1 of the orders granted by the above
Honourable Court on the 13
th
day of October 2017 and
varied on the 9
th
day of November 2018 (“
the
order”
) was obtained as a result of the respondent’s
fraudulent conduct;
2.
Setting aside the order in its entirety;
3.
Directing the respondent to pay the costs of this application;
4.
Further and/or alternative relief.”
[4]
The second stay application served before me and I,
inter alia,
issued the following order:
“
4.
The second stay application in terms of the Amended Notice of Motion
is dismissed.
5. The
applicant and Mr RRH (Rob) Hulme (in his personal capacity) are
ordered to pay the costs of the second
stay application, jointly and
severally, payment by the one the other to be absolved, on a scale as
between attorney and client,
which costs are to include the costs
referred to in paragraph 3 of the order granted by agreement between
the parties pertaining
to the interlocutory applications and the
granting of condonation, as set out earlier in the judgment.”
[5]
The applicant is seeking leave to appeal against the last mentioned
paragraphs 4 and
5 of the order issued in the second stay
application.
[6]
I will henceforth refer to the parties as “Goldex” and
“the Body
Corporate”, respectively, like I did in the
judgment in the second stay application.
Applicable
legal principles pertaining to applications for leave to appeal:
[7]
Section 17(1)(a) of the Superior Courts Act, 10 of 2013 (“the
Act”) determines
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) …”
[My emphasis]
[8]
In the judgment of
Acting National Director of Public
Prosecutions v Democratic Alliance
In Re
Democratic
Alliance v Acting National Director of Public Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016) the court held at para
[25] of the judgment that the Act has raised the bar for granting
leave to appeal and in this regard it referred to the judgment of
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
2014 JDR 2325 (LCC), in which judgment the court held as follows at
para [6]:
“
It is clear that
the threshold for granting leave to appeal against a 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, see
Van
Heerden v Cronwright & Others
1985 (2) SA 342
(T) at
343H. 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.”
See also
Rohde v S
2020 (1) SACR 329
(SCA) at para [8] and
Fair-Trade Independent
Tobacco Association v President of the Republic of South Africa and
Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at
para [4].
[9]
However, as correctly submitted by Mr Pincus, on behalf of Goldex, it
has also been
point out that the test on appeal should not be applied
so strictly that the important and necessary procedural safeguards
against
judicial error is rendered nugatory. See
Muhanelwa
v Gcingca
(4713/2017)
[2018] ZAGPJHC 718 (27 February 2018) at para [15].
[10]
With regard to the test as to what constitutes “
reasonable
prospects of success
” the well-known
dictum
in
S
v Smith
2012 (1) SACR 567
(SCA) at para [7] is applicable:
"What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects
are not remote but
have a realistic chance of succeeding. 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."
[11]
In considering whether there is some other
compelling reason why the proposed appeal should be heard, an
important question of law may constitute such a compelling reason.
However, the merits thereof still need to be considered in deciding
whether to grant leave to appeal or not. In
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA) at para [2] the court determined as follows in
this regard:
[2]
In order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii) of the
Superior Courts Act an
applicant for leave must satisfy the court that the appeal would have
a reasonable prospect of success or that there is some other
compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still enquire
into
whether there is a compelling reason to entertain the appeal.
A
compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future
disputes. But here too, the merits remain vitally important and are
often decisive.
Caratco must satisfy this court that
it has met this threshold.” (My emphasis)
[12]
In
Talhado Fishing Enterprises (Pty) Ltd v Firstrand
Bank Ltd t/a First National Bank
(1104/2022)
[2023] ZAECQBHC 16 (14 March 2023) the aforesaid principles were duly
followed and applied:
“
4.
Irrespective of the prospects of
success, there may nevertheless exist a compelling reason for the
appeal to be heard. The subsection
does not contain an exhaustive
list of criteria, and each application for leave to appeal must be
decided on its own facts.
5.
It is the applicant for leave to
appeal must demonstrate that there is a compelling reason why the
appeal should be heard.
6.
…
7.
Other
compelling reasons include the fact that the decision sought to be
appealed against involves an important question of law
and that the
administration of justice, either generally or in the particular case
concerned, requires the appeal to be heard.
…
8.
As far as
compelling reasons are concerned, the merits of the prospects of
success remain vitally important and are often decisive.”
The
grounds of the application for leave to appeal:
[13]
The grounds of appeal are set out in 47 paragraphs which extend over
16 pages. For this reason
and because it in any event forms part of
the record, I do not intend repeating same herein.
[14]
I do, however, for the sake of clarity and completeness, wish to
record that Mr Pincus indicated
during the hearing of the arguments
that Golde is not seeking to appeal the costs order on its own and on
a separate basis. The
proposed appeal against the costs order runs
hand in hand with the proposed appeal on the merits of the
application.
The
merits of the application:
[15]
My judgment in the second stay application consists of 115 pages. In
my view it is a very detailed
and comprehensive judgment. I dealt at
length with all the relevant evidence, as well as the applicable
legal principles. To my
knowledge I also dealt with every substantial
and relevant argument presented by the respective parties during the
hearing of the
second stay application. I also set out my line of
reasoning in respect of every conclusion and finding I made.
[16]
If I am to deal afresh with the grounds of the application for leave
to appeal and the detail
of the arguments and submissions by Mr
Pincus advanced in support thereof, it will result in the repetition
of a judgment similar
in volume and nature than my judgment of the
merits of the second stay application.
[17]
In my judgment on the merits I dealt with the arguments which were
now repeated in the application
for leave to appeal. I have again
duly considered the respective grounds and arguments and in my view
there is no reasonable prospect
that another court would come to
different conclusions with a resultant different outcome to the
application.
[18]
Mr Pincus furthermore submitted that there are compelling reasons why
this proposed appeal should
be heard. He submitted in his heads of
argument as follows:
“
In this regard, it
is in the interests of justice that orders occasioned by fraudulent
conduct ought not be allowed to stand, more
particularly when the
administration of justice is involved.”
[19]
I do not deem it necessary to make a finding whether the present
matter falls within the ambit
of “
the administration of
justice”
as meant by the interpretation of section
17(1)(a)(ii) of the Act. The fact remains, as evident from the
authorities quoted earlier,
the prospective merits of such a proposed
appeal “
remain vitally important and
are often decisive
”. I
persist with my view that there
is no reasonable prospect that
another court would come to different a different conclusion.
[20]
In
Cassimjee v Minister of Finance
2014 (3) SA 198
(SCA) at para [9] the Supreme Court of Appeal held as
follows:
“
[9]
Section 34 of the Constitution provides that everyone has the right
to have a dispute that can be resolved by the application
of law
decided by a court or tribunal in a fair public hearing, but a
limitation of the protected right is permissible, provided
that
such limitation is reasonable and justifiable. The right of a high
court to impose procedural barriers to litigation on persons
who are
found to be vexatious was recognised in
Beinash
(supra
para 17). In that matter it was held that restricting access to
vexatious litigants was indispensable to protect and
secure the
rights of those with meritorious disputes and necessary to protect
bona fide litigants, the processes of the courts
and the
administration of justice. Compare also
Giddey NO v JC
Barnard and Partners
2007 (5) SA 525
(CC)
(2007 (2)
BCLR 125
;
[2006] ZACC 13)
paras 15 – 18. The same
considerations, I believe, would apply to an abuse of court
procedures.”
[21]
There is, in my view, consequently no basis upon which Goldex can be
granted leave to appeal against paragraphs
4 and 5 of the order
issued in the second stay application.
The
costs of the application for leave to appeal:
[22]
Mr Strathern, on behalf of the Body Corporate, submitted that should
the application for leave
to appeal be unsuccessful, it will be fair
and reasonable that Mr Hulme again be ordered to pay the costs of the
application for
leave to appeal in his personal capacity, jointly and
severally with Goldex, payment by the one the other to be absolved.
He submitted
that Mr Hulme should have accepted and taken
responsibility for the situation subsequent to the judgment on the
merits of the second
stay application had been delivered instead of
attempting to postpone the inevitable. The trial between the parties
should be proceeded
with as soon as possible in order to bring an end
to the protracted and acrimonious litigation between the parties.
[23]
Mr Pincus submitted that Mr Hulme was and is entitled to approach
court to exercise his remedies
if he believes that he has been denied
justice and should not be penalised to have done so by means of the
application for leave
to appeal.
[24]
I agree with the submissions of Mr Strathern. I have already dealt
with the conduct of Mr Hulme
in the judgment on the merits of the
second stay application, paragraphs [187] to [204] thereof, which led
me to have made an order
of costs
de bonis propriis
on an
attorney and client scale against him. In my view those reasons are
mutatis mutandis
applicable to the application for leave to
appeal in that Mr Hulme persisted with the litigation even after the
judgment on the
merits of the second stay application became
available. His conduct is unreasonable, vexatious and in bad
faith.
Order:
[25]
I consequently make the following order:
1.
The application for leave to appeal is dismissed.
2. The
applicant and Mr RRH (Rob) Hulme (in his personal capacity) are
ordered to pay the costs of the application
for leave to appeal,
jointly and severally, payment by the one the other to be absolved,
on a scale as between attorney and client.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv
S.P. Pincus SC
Instructed
by
:
Howard
S Woolf
C/O
AP Pretorius and Partners
BLOEMFONTEIN
On
behalf of the respondent:
Adv
P. Strathern SC
Instructed
by:
Brian
Kahn Inc
C/O
Claude Reid Inc
BLOEMFONTEIN