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[2022] ZAECMKHC 110
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Raymond Mhlaba Local Municipality v Coega Packaging (Pty) Ltd (1838/2021) [2022] ZAECMKHC 110 (29 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: 1838/2021
In
the matter between:
RAYMOND
MHLABA LOCAL
MUNICIPALITY
Applicant
and
COEGA
PACKAGING (PTY)
LTD
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Rugunanan
J
[1]
In this matter I delivered a judgment on 19
July 2022 in which an application for rescission
of a judgment/order granted by Smith J on 27 July 2021 was
dismissed with costs.
[2]
I shall refer to the
parties as they were in the main application.
[3]
The applicant seeks
leave to appeal either to a full court of this division or to the
Supreme Court of Appeal against the whole
of my judgment.
[4]
The judgment sets out in detail the
background to this matter and the reasons for dismissing the
application.
[5]
In essence it is argued that I erred on the
issue of service of the notice of motion and the notice of set down;
that I erred in
holding that the respondent’s claim was liquid;
that I failed to deal with the arguments advanced concerning the
competence
of seeking a forced transfer of encroached upon land; and
that I failed to deal with that component of the order which directed
a solatium to be paid as calculated by the Expropriation Act 63 of
1975.
[6]
To a large extent the grounds for leave to
appeal, both legal and factual, assert that my reasoning was
erroneous and that I failed
to take into consideration or give
sufficient weight to other factors.
[7]
What I do not propose to do is to repeat
that which is set out in my judgment in as much as that which was
relevant was considered
therein.
[8]
I
am mindful that an appeal is solely aimed at an order of court and
not its reasoning.
[1]
[9]
Section 17(1)
of the
Superior Courts Act 10 of 2013
deals with
the circumstances upon which leave to appeal may be granted.
[10]
To make that determination, it is worth restating the
provisions of the section.
[11]
It provides 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.”
[12]
Turning
the focus to these provisions, leave to appeal may only be granted
where the judge concerned is of the opinion that the
appeal would
have a reasonable prospect of success, or there are compelling
reasons which exist why the appeal should be heard
such as the
interests of justice.
[2]
As to
the provisions of s 17(1)
(a)
(ii)
of the Act, the Supreme Court of Appeal in
Caratco
(Pty)
Ltd v Independent Advisory (Pty) Ltd
[3]
indicated
that if the court is unpersuaded that there are prospects of success,
it must still enquire into whether there is a compelling
reason to
entertain the appeal.
[13]
Compelling
reason would include an important question of law or a discrete issue
of public importance that will have an effect on
future disputes. But
here the merits as well remain vitally important and are often
decisive.
[4]
[14]
I
am cognisant of the decisions of the high court debating whether the
use of the word ‘would’ as opposed to ‘could’
possibly means that the threshold for granting leave to appeal has
been raised. If a reasonable prospect of success is established,
leave should be granted. And similarly, if there are some other
compelling reasons why the appeal should be heard, then leave should
be granted. The test of reasonable prospects of success postulates ‘a
dispassionate decision based on the facts and the law’
[5]
that ‘another court may well find merit in [the] arguments
advanced by the losing party’
[6]
and ‘reasonably arrive at a conclusion different to that of the
trial court’
[7]
.
[15]
Foundational to the judgment is that I
approached the matter principally on the basis that an encroachment
onto the respondent’s
land was treated as an expropriation. My
decision impacts on the executive and functional competence of a
municipality that has
administrative authority with regard to the
matters listed in Part B of schedules 4 and 5 of the Constitution and
the rights of
a landowner. This is an issue of public importance that
conceivably will have an effect on future disputes. Matters in the
realm
of expropriation have a bearing on the Constitution and
fundamentally affects rights and obligations. Moreover, it is not
clear
to me whether the judgment purports to establish a precedent
that in all circumstances such as the present, a discretionary remedy
to order compensation instead of the removal of the encroachment
would be competent.
[16]
Although differing contentions on the
merits of the application were made I consider that the importance of
this matter impels the
conclusion that there are compelling reasons
for allowing leave to appeal.
[17]
I
do so on the basis essentially set out in this judgment – but
do not limit such leave exclusively thereto as I consider
that it
will be unjust to preclude interference on appeal if it is found that
the judgment and the order is obviously wrong in
other respects
[8]
– in particular, the asserted grounds of appeal. As for
the latter I make it clear that the test – dispassionately
applied – is that another court may well find merit in the
applicant’s arguments and conclude differently than did
I.
[18]
In the result, the following order is made:
1.
The applicant is granted leave to appeal to
the full court of this division against the whole of the judgment and
order of this
court delivered on 19 July 2022.
2.
The costs of this application shall be
costs in the appeal.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant: A.
Beyleveld SC
Instructed
by:
Wheeldon
Rushmere & Cole Inc.
119
High Street
Makhanda
Tel:
046-622 7005
(Ref:
B. Brody)
For
the Respondent: D. De La Harpe SC
Instructed
by:
Cloete
& Company
112A
High Street
Makhanda
Tel:
046-622 2563
(Ref:
P. Cloete)
Date
heard:
31 August 2022
Date
Delivered:
29 November 2022
[1]
The
Minister of Justice and Constitutional Development and Others v The
Southern Africa Litigation Centre
[2015] ZAGPPHC 675 para 5.
[2]
Nova
Property Holdings Limited v Cobbett & Others
[2016] ZASCA 63:
2016 (4) SA 317
(SCA) para 8.
[3]
[2020] ZASCA 17
;
2020 (5) SA 35
(SCA) para 2.
[4]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[2020]
ZASCA 17
;
2020 (5) SA 35
(SCA) para 2; also
Ramakatsa
and Others v African National Congress and Another
[2021] ZASCA 31
para 10.
[5]
Ramakatsa
and Others v African National Congress and Another supra
para
10.
[6]
Per Smith J in
Valley
of the Kings Thaba Motswere (Pty) Ltd and Another v Al Mayya
International
[2016]
ZAECGHC 137 para 4. This test was cited with approval by Mbenenge JP
in
Minister
of Police v Abongile Zamani
[2021]
ZAECBHC 1 para 10.
[7]
Ramakatsa
and Others v African National Congress and Another supra
para 10.
[8]
Compare
Qunta
v Minister of Police
[2013]
ZAECGHC 53 para 5.