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[2022] ZAECMKHC 95
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Songo v Council of Lovedale TVET College and Others (2811/2020) [2022] ZAECMKHC 95 (8 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GRAHAMSTOWN)
CASE
NO: 2811/2020
Date
heard: 17 March 2022
Date
delivered: 12 April 2022
In
the matter between
PHUMZILE
SONGO
Applicant (Respondent in the Leave to Appeal
And
THE
COUNCIL OF LOVEDALE TVET COLLEGE
First Respondent
PAULINE
SEEMISE
Second Respondent
(The
Chairperson of the Lovedale College Council)
WISTON
PLAATJIES
Third Respondent
(The
Deputy Chairperson of the Lovedale College
Council)
JUANITA
VERSTER
Fourth Respondent
(The
Acting Principal of the Lovedale College)
WANDILE
NTUSANA
(Member
of the Lovedale College Council
Fifth Respondent
BONGI
PAYANA
(Member
of the Lovedale College Council)
Sixth Respondent
THEMBALETHU
BHEKA
(Member
of the Lovedale College Council)
Seventh Respondent
LUYOLO
NGQONGWA
(Member
of the Lovedale College Council)
Eight Respondent
CIKIZWA
GANTO
(Member
of the Lovedale College Council)
Ninth Respondent
MIHLALI
PETSHE
(Member
of the Lovedale College Council)
Tenth Respondent
XOLISA
TYALI
(Member
of the Lovedale College Council)
Eleventh Respondent
THE
MINISTER OF HIGHER EDUCATION
Twelfth Respondent
(First, Second, Fifth
and Seventh Respondent in the Leave to Appeal)
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
LOWE
J
:
INTRODUCTION
1.
In this matter, I originally heard
extensive argument from the parties followed by a full judgment in
which the application was
essentially successful but each party to
pay their own costs.
2.
In due course, first, second, fifth and
seventh respondents as applicants, sought leave to appeal the entire
judgment to the Full
Bench of the Eastern Cape Division alternatively
the Supreme Court of Appeal.
3.
There were no fewer than fourteen
paragraphs in the grounds advanced in respect of the application for
leave to appeal most of which
surrounded the manner in which it was
alleged that I had erred.
4.
The application for leave to appeal was
subsequently argued by counsel who had not represented the various
respondents (applicants
in the application for leave to appeal), and
in respect of which careful and well-articulated argument was
addressed relevant to
the application for leave to appeal.
5.
Indeed,
counsel laid considerable weight upon a matter which had not been
referred to me during the original argument being
Miller
v Natmed Defence (Pty) Ltd and others
[1]
.
I will return hereto in due course.
THE APPROACH TO
APPLICATIONS FOR LEAVE TO APPEAL
6.
I
have given careful consideration to the principles, which are applied
by our courts in respect of applications for leave to appeal
and
particularly in terms of
Section 17(1)
of the
Superior Courts Act 10
of 2013
and the sometimes suggested slightly changed onus or level
that has to be applied thereto as has been suggested in a number of
cases particularly in the Labour Court.
[2]
7.
I wish to make it clear however, that I
have applied the present test hereto and that is whether there is a
reasonable prospect
that another court would come to a different
conclusion than did I.
8.
I
have also had careful regard to the decision of the Supreme Court of
Appeal,
Minister
of Justice and Constitutional Development and Others v Southern
Africa Litigation Centre and Others
[3]
,
a judgment given on the 15 March 2016 in which Wallis JA dealt with
an application for leave to appeal, commenting on appeals
in which
there is a particularly important matter to be decided that is a
matter of public importance. At paragraph [23] he outlined
the basis
underlying what he said in paragraph [24], which I intend to quote
selectively, and it was against this background that
it was suggested
that in that matter jurisprudence should have been considered as a
guide to whether, notwithstanding the High
Court’s view in that
matter as to the prospects of success, leave to appeal should have
been granted, having regard to the
importance of the matter to
various parties and the public.
9.
His Lordship said as follows at paragraph
[24]:
“
That
is not so say that merely because the High Court determines an issue
of public importance it must grant leave to appeal. The
merits of the
appeal remain vitally important and will often be decisive.”
10.
In any event, it is clear that if there is
a reasonable prospect that another court may differ on the issues
raised, leave to appeal
must be given.
THE ARGUMENT IN
THIS MATTER
11.
The fundamental basis of the argument in
this application is effectively that I erred having set out the
statutory background applicable
to the application, in thereafter
failing to find that along the lines suggested in
Miller
(
supra
)
essentially that even where statutory requirements have not been
complied with, such as in this matter, if this did not serve
to
prejudice the parties, the failure to comply with those statutory
requirements was by no means fatal to the consequences which
followed.
12.
In the application for leave to appeal, it
is urged upon me that there was no prejudice in this regard
whatsoever, and that accordingly
on the authority of
Miller
,
there was a reasonable prospect that another court would come to a
different conclusion.
13.
It was further argued that if this was the
case, then it became necessary to consider whether the appointment
originally of Professor
Plaatjies as chair for the following three
years had to be dealt with and could not be ignored as I had done.
14.
I have given the matter considerable
thought, but I am unpersuaded that there is on the basis advanced in
argument, and I have considered
all the arguments advanced, that
there is a prospect of success on appeal not being persuaded that
another court might reasonably
come to a decision different to that
which I did.
15.
I consider that the
Miller
decision (
supra
)
is entirely distinguishable in this regard which matter relates to
the removal of directors of a company and the requirement that
reasons be given for their removal or their intended removal relevant
to
section 71(2)
of the
Companies Act 71 of 2008
. In that matter as I
understood the argument and relying on paragraphs 42 and 43 of the
judgment, in respect of which the failure
to give notice was said not
to have prejudiced applicant and thus did not render his removal
unlawful is of application in this
matter. In my view this is not
applicable to this matter and does not assist the argument.
16.
The remainder of the reasons set out in my
judgment are clear and it would serve no reasons to restate same and
certainly impermissible
to further bolster these reasons.
17.
It should be noted, that the respondents in
this matter did not enter into the application for leave to appeal,
and accordingly
it is unnecessary to make any costs order in respect
of the application, respondents having left the matter in the hands
of the
court.
ORDER
18.
In the circumstances the application for
leave to appeal is refused.
19.
It is ordered that:
1.
The application for leave to appeal is
refused.
2.
There shall be no order as to costs.
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Appearing on behalf of
the Applicant: Adv.
Nxumalo, instructed by: Netteltons Attorneys,
Ms. Pienaar.
Date
heard:
14 October 2022.
Date
delivered:
8 November 2022.
[1]
2022
(2) SA 554
GJ.
[2]
The
Mont Chevaux Trust (IT 2012/28) v Goosen and 18 others
LCC14R/2014;
Fair
Trade Tobacco
Association
v President of the Republic of South Africa and Others
(21688/2020) [2020] ZAGPPHC
311.
[3]
2016
(3) SA 317
(SCA).