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[2022] ZAFSHC 148
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Cornelius Jahannes De Bruyn N.O and Another v Koot Oosthuizen Attorneys and Another (3668/2021) [2022] ZAFSHC 148 (19 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 3668/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
CORNELIUS
JAHANNES DE BRUYN N.O 1
st
Applicant
CORNELIUS
JOHANNES DE BRUYN N.O 2
nd
Applicant
and
KOOT
OOSTHUIZEN ATTORNEYS
1
st
Respondent
MASTER
OF THE HIGH COURT
BLOEMFONTEIN 2
nd
Respondent
CORAM:
CHESIWE J
DATE
OF APPEAL:
The matter was adjudicated on the Heads of Argument as directed
and authorised by the Court.
DELIVERED
ON:
1
9
MAY 2022
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
[1]
The Applicants’ application for leave to
appeal is to the full court of this Division against the court order
of my judgment
handed down on 25 November 2021, which order was that
each party shall be liable to pay their own costs.
[2]
The Applicants raised five grounds of appeal based on the premises
that
the court did not exercise its discretion judicially in granting
the cost order and misdirected itself, thus another court will
interfere with such order.
[3]
The issues raised on these grounds of appeal, entail a revisit to the
contended issues that were dealt with in the main application.
However, the issue is whether another court would come to a different
decision.
[4]
In order to succeed, the Applicants must convince this court on
proper
grounds that there are prospects of success on appeal and
these 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 and rational basis for the conclusion that there
are
prospects of success on appeal.
[5]
Section 17(1)(a) of the Superior Court’s
Act 10 of 2013
determines
enter alia
that leave to
appeal may only be given where the judge or judges concerned are of
the opinion that
the appeal would have
reasonable prospects of success or there are compelling reasons why
leave should be heard.
[6]
The Applicants contend that the Respondent had conceded to the relief
sought in the notice of motion, namely prayers 1, 2, 3 and 4 which
that alone the court ought to have awarded costs to the successful
party.
[7]
The test to
be applied in applications of this nature is explained by Daffue J in
Mototo v
Free State Gambling and Liquour Authority
[1]
as follows:
“
There can be no
doubt that the bar for granting leave to appeal has been raised.
Previously, the test was whether there was reasonable
prospect that
another court might come to a different conclusion. Now, the use of
the word ‘would’ indicates a measure
of certainty that
another court will differ from the court whose judgment is sought to
be appealed against. The use of the word
‘only’
emphasised
supra
is a further indication of a more stringent
test.”
[8]
With
applications for leave to appeal, the court is called upon to
consider whether another court would in considering all the facts
of
the applicable case come to a different conclusion. This procedure
calls upon a presiding officer to consider its own judgment
and
adjudicate such judgment from the perspective of the court of appeal.
The invidious position of the judge called upon to consider
to grant
or not to grant leave to appeal.
[2]
[9]
In
R
v Muller
[3]
, Thompson AJ said the
following:
“
From the very
nature of things, it is always somewhat invidious for a Judge to have
to determine whether a judgment which he has
himself given may be
considered by a high Court to be wrong, but that is a duty imposed by
the Legislature upon the Judges in both
civil and criminal matters.”
[10]
Having considered the written heads of argument of both parties, in
my view another court
may come to a different conclusion in respect
of the cost order.
[11]
Accordingly, I order as follows:
1.
Leave to appeal is granted to the Full Court of this Division.
2.
Costs to be costs in the appeal.
CHESIWE, J
On
behalf of the Plaintiff:
Adv. R van der Merwe
Instructed
by:
Badenhorst Inc.
BLOEMFONTEIN
On
behalf of Respondents: Adv.
JC Coetzer
Instructed
by: Lovius
Block Attorneys
BLOEMFONTEIN
[1]
4629/2017 ZAFSHC 8 June 2017
[2]
R v Balloi
1949 (1) SA 53
AD at 524-525.
[3]
1957 (4) SA 642
(A) at 645