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[2022] ZAFSHC 330
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Ioannides N.O and Others v Western National Insurance Company Limited and Another (5056/2021) [2022] ZAFSHC 330 (22 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5056/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
RODOS
IOANNIDES N.O.
First
Applicant
CHRISTOS
IOANNIDES N.O.
Second
Applicant
WAYNE
GARETH BEELDERS N.O.
Third
Applicant
(
in
their respective official capacities as duly appointed
Trustees
of the Caramello’s Trust (IT 730/04))
and
WESTERN
NATIONAL INSURANCE COMPANY LIMITED
First
Respondent
STEPP
BLOEMFONTEIN
Second
Respondent
JUDGMENT
BY:
C
REINDERS, J
RESERVED
ON:
7
OCTOBER 2022
DELIVERED
ON:
22 NOVEMBER
2022
This
judgment was handed down in open court where after it was distributed
electronically to the parties’ legal representatives
via email.
APPLICATION
FOR LEAVE TO APPEAL
[1]
This is an application for leave to appeal against the whole of the
order and judgment
granted by myself on 23 May 2022 in terms whereof
I dismissed the application (hereafter “the main application”)
with
costs.
[2]
On 13 June 2022 the applicants (as cited both in the main application
and in this
application for leave to appeal) issued a notice for
leave to appeal (“the notice”).
[3]
As no feedback was received to requests for dates for the hearing of
the application
for leave to appeal, the parties were informed that I
intended to decide the application in chambers in terms of Free State
Rule
16.5. No written objection thereto was received and parties were
instructed to file heads of arguments on 3, 5 and 7 October 2022
respectively. I am indebted to counsel for their able and
comprehensive heads of argument.
[4]
The nature of the relief claimed by the applicants in the main
application was a declaratory
order to the effect and extent that the
first respondent be declared liable to indemnify the applicants for
any loss suffered as
a result of a fire at the applicants’
Preller Plein Caramello’s premises in terms of an agreement of
insurance contract
(“the contract”) concluded between the
Caramello’s Trust and the first respondent as insurer, and
costs of the
application.
[5]
The legislative framework for considering an application for leave to
appeal is set
out in section 17(1) of the Superior Courts Act, 10 of
2013 (“the Act”). It reads:
“
17(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;
…”
(own
emphasis).
I
do not read the notice or the heads of argument filed by the
applicants to indicate that reliance is placed also on
section17(1)(a)(ii)
of the Act in that there is some other compelling
reason why the appeal should be heard.
[6]
In considering an application for leave to appeal the test to be
applied by a court
was set out in
The
Mont
Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others
2014 JDR 2325 (LCC)
. Bertelsmann J held as follow in 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
."
(own emphasis)
[7]
It is trite that previously in applications of this nature the test
to be applied
was whether there were reasonable prospects that
another court may come to a different conclusion. The principles laid
down by
Plasket AJA in
S v Smith
2012 (1) SACR 567
(SCA)
at para [7] thereof in considering what constitute
reasonable prospects of success, remains undisturbed:
"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."
(own emphasis)
See
also:
MEC Health, Eastern Cape v Mkhita and Another
(1221/2015)
[2016] ZASCA 176
(25 November 2016)
at paras [16] and [17];
[8]
In the notice the applicants set out its grounds of appeal under
paragraphs [1] and
[2], inclusive of the sub-paragraphs thereto. I do
not intend repeating the said grounds herein, save to state that the
applicant
avers that the court erred and misdirected itself in
several ways in regards to the essence the dispute between the
parties, namely
the obligation on an insured to make a full
disclosure to an insurer of all material facts that may influence an
insurer’s
opinion in relation to the risk to be incurred by it.
From the applicants’ heads of argument, it also seems that
issue is
taken with the interpretation of the contract, although not
so mentioned as a ground of appeal in the notice. The
applicants
ultimately submitted that the appeal would have a
reasonable prospect of success. In opposing the application for leave
to appeal,
the first respondent in its heads of argument dealt with
all of the aforementioned submissions made by the applicants and
contended
that the applicants did not succeed in meeting the
threshold as set out in the case law mentioned herein before.
[9]
I have carefully considered the papers filed in respect of the
application that served
before me, and my judgment. I have also
scrutinised the submissions made by counsel for both parties in their
heads of argument,
including the guiding case law and legislation
dealing with the main application as well as applications of this
nature. Having
done so, I am of the view that the applicants did not
succeed in convincing me that there is a reasonable prospect that
another
court would come to a different finding.
[10]
It is trite that costs should follow the successful litigant and I do
not have any reason to
find otherwise.
[11]
In the result the following order is made:
The
application for leave to appeal is dismissed with costs.
C.
REINDERS, J
On
behalf of the Applicants: Adv
C Snyman
Instructed
by: Phatsoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of the first respondent: Adv
DJ Coetsee
Instructed
by: BDP
Attorneys
c/o
Kramer Weihmann Attorneys
BLOEMFONTEIN