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[2022] ZANCHC 39
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Louw v Engirex (Pty) Ltd and Others (1629-2020) [2022] ZANCHC 39 (29 July 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: 1629/2020
Reportable: NO
Circulate to Judges: NO
Circulate to Regional
Magistrates: NO
Circulate to Magistrates:
NO
Heard: 09 May 2022
Judgment delivered: 29
July 2022
In the matter between:-
JOHANNES
ABRAHAM LOUW
APPLICANT
and
ENGIREX
(PTY) LTD
FIRST RESPONDENT
BERTUS
KILIAN SECOND
RESPONDENT
NEXUS (PTY)
LTD
THIRD RESPONDENT
JUDGMENT:
APPLICATION
FOR LEAVE TO APPEAL
INTRODUCTION:-
[1]
At the hearing of the main application, the parties agreed that the
rule nisi, which
was sought and granted in favour of the applicant,
should be discharged. The primary relief moved for and the
determination
of the main application had thus become moot and I was
seized with only the issue of costs.
[2]
On 30 July 2021, I granted an order that the
applicant
was to pay the first and second respondents’ costs.
[3]
The applicant now seeks leave to appeal the cost order.
[4]
I will refer to the parties as they were in the main application.
GROUNDS
OF APPEAL:-
[5]
In essence, the grounds of appeal can be summarised as that I
misdirected myself in
finding that:-
5.1
the dispute revolved around the question of whether the applicant was
still an agent of
the first respondent on 25 September 2020 rather
than whether the applicant was still an agent of the first respondent
when he
was prompted to lodge the urgent application; and
5.2
the marketing agreement between the applicant and the third
respondent was relevant and
that the applicant could have contracted
directly with the third respondent.
LEAVE TO APPEAL:-
[6]
The test of what needs to be established in order to be granted the
necessary leave
to appeal is set out in section 17(1) of the Superior
Courts Act, Act 10 of 2013 (“the Superior Courts Act”),
the relevant
provisions of which read as follows:-
“
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;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a);
and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[7]
Section 16(2)(a) of the Superior Courts
Act provides that:-
“
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision
sought will have no practical effect or result, the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have
no practical effect or result is to be determined
without reference to any consideration of costs”.
APPLICABLE
LEGAL PRINCIPLES:-
[8]
In
S
v Smith
[1]
Plasket AJA emphasized that:-
“
[7]
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.”
[9]
Mr Olivier, on behalf of the applicant, submitted that this
application should be
determined only with reference to the question
of whether the applicant has reasonable prospects of success on
appeal.
[10]
In the matter of
Gelb
v Hawkins
,
[2]
the Appeal Court confirmed that awarding of costs in any matter is in
the exclusive discretion of the Court, which discretion should
be
exercised judicially upon a consideration of all of the facts of each
case.
[11]
According to the applicant, I failed to exercise my discretion
judicially as I did note take
cognisance of all the relevant facts.
Mr Olivier argued that the applicant was justified in lodging
the main application
at the time that he did and, by virtue of the
fact that the first respondent accepted orders placed by the
applicant with the third
respondent subsequent to the granting of the
rule
nisi
, it should be accepted that the applicant was
substantially successful in the main application.
[12]
It is trite that a court, sitting as a court of appeal, will not
lightly interfere with any judgment
(specifically with a judgment as
to costs) where the court
a
quo
exercised
a discretion when deciding on the issue, on condition that the
discretion was judicially exercised.
[3]
In essence, whether I exercised my discretion judicially,
entails an investigation on whether the decision is based on grounds
upon which a reasonable person would have reached the same
conclusion.
[4]
[13]
In
Trencon
Construction (Pty) Ltd v Industrial
Development
Corporation of South Africa Ltd and another
,
[5]
the Constitutional Court confirmed, with reference to
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs
and
others
,
[6]
that:-
“
When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere
unless it is satisfied that this discretion was not exercised:
". . .
judicially, or that it had been influenced by wrong principles or a
misdirection on the facts, or that it
had reached a decision which in
the result could not reasonably have been made by a court properly
directing itself to all the
relevant facts and principles.”
[14]
Mr Olivier contended that the judgment, which forms the subject of
this application for leave
to appeal, does not fall within the ambit
of Section 16(2)(a) of the Superior Courts Act. Mr D van
Reenen, on behalf of the
first and second respondents, countered that
this application does fall within the ambit of section 16(2)(a) as
the issue is of
such a nature that the decision sought will have no
practical effect or result and that no exceptional circumstances
exists. He
submitted that the appeal may be dismissed on this
ground alone.
[15]
The Constitutional Court in the matter of
Tebeila
Institute of Leadership Education, Governance and Training v Limpopo
College of Nursing and Another
[7]
held that “
few
appellate courts countenance appeals on costs alone” and that
the practical impact of s 16(2)(a) of the Act is that “appeals
on costs alone are allowed very rarely indeed.”
[16]
In
Khumalo
v Twin City Developers
[8]
the Supreme Court of Appeal, with regard to what would constitute
“exceptional circumstances”, held that:-
“
[23]
There are, however, other reasons why I conclude that
exceptional circumstances that warrant the hearing of his appeal have
been
established. These are set out below. This Court, in Jazz Spirit
12(Pty) Limited v Regional Land Claims Commissioner: Western Cape
had
occasion to consider the provisions of s 21A(1) and (3) of the
Supreme Court Act. The appeal that served before that court
was
directed only at the fact that the court a quo had not made any costs
order. On appeal, the question that occupied the court’s
mind
was whether the facts of circumstances of the case constituted
‘exceptional circumstances’ for purposes of s 21A(1).
In answering that question, this Court cited the following passage
from the judgment of Thring J with approval:-
‘
I think that,
for the purpose of s 5(5)(a)(iv) the phrase ‘exceptional
circumstances’ must, both for the specific reason
mentioned by
Jones J and by reason of the more general consideration adumbrated by
Innes ACJ in Norwich Union Life Insurance Society
v Dobbs, (supra loc
cit), be given a narrow rather than a wide interpretation. I conclude
to use the phraseology of Comrie J in
S v Mohammed (supra, loc cit)
t
hat, to
be exceptional within the meaning of the subparagraph, the
circumstances must be “markedly unusual or specially
different”:
and that, in applying that test, the circumstances
must be carefully examined.”
[17]
In my view, my decision had no practical effect or result as it dealt
with the issue of costs
alone.
[18]
Mr Olivier confirmed that the exceptional circumstances the applicant
relies on are limited to
the grounds of appeal.
In
my view,
the applicant has made no attempt to
list any circumstances that are markedly unusual of specially
different. The application
for leave to appeal stands to be
dismissed for this reason alone.
[19]
After dispassionately assessing the
rationale
for my decision
in the main application, I am persuaded that a reasonable person
would have found that the agency agreement between
the applicant and
the first respondent had been terminated prior to the launching of
the urgent application and that the relief
sought by the applicant
was not necessary as he could have contracted directly with the third
respondent to deliver products to
his clients. The basis for my
factual findings, set out in paragraphs [5] to [17] of my judgment
does not support the contention
that I did not exercise my discretion
judicially. There are simply no reasonable prospects of success
on appeal.
COSTS:-
[20]
Mr van Reenen argued that a punitive cost order should be granted in
favour of the first and
second respondents in view of the fact that
the main application was ill-advised, alternatively that costs should
be awarded on
a party and party scale.
[21]
The cost order on a punitive scale was, however, not vigorously
pursued.
I am not
convinced that the application was objectively vexatious or an abuse
of legal process that will warrant a punitive cost
order.
WHEREFORE I MAKE THE
FOLLOWING ORDER:-
The application for leave
to appeal is dismissed, with costs.
STANTON,
A
ACTING
JUDGE
On
behalf of the applicant:
Adv. AD Olivier
On
behalf of repondents: Adv.
D van Reenen
[1]
2012
(1) SACR 567
(SCA).
[2]
[1960] 3 All SA
371
(A) at 376.
[3]
Kruger Bros &
Wasserman v Ruskin
1918 AD 63
at 69. See also Cronje v Pelser
[1967]
1 All SA 265
(A) at 267.
[4]
Merber v Merber
[1948] 1 All SA 446
(A) at 453 with reference to Ritter v Godfrey
(1920, 2.K.B. 47).
[5]
[2016]
JOL 33413
(CC) at paragraph [88].
[6]
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs and others
[2000]
JOL 5877
(CC) at paragraph
[11].
[7]
2015 (4) BCLR 39
(CC) at paragraph [13]. See also Justice Alliance of South Africa v
Minister for Safety and Security and Others 2013 (7) BCLR
785 (CC).
[8]
(328/2017)
[2017]
ZASCA 143
(02 October 2017).