About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 25
|
|
Government Employees Medical Scheme and Others v Mokoditoa (32165/2020) [2021] ZAGPPHC 25 (25 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
25-01- 2021
Case
Number
: 32165/2020
In
the matter between:
THE
GOVERNMENT EMPLOYEES MEDICAL SCHEME
First Applicant
DR
BOJOSI OLEHILE STANLEY
MOLOAB
Second Applicant
MPASHA
ISMAEL MOGAPI
Third
Applicant
and
ALFRED
MOKODITOA
Respondent
JUDGMENT
KUBUSHI
J,
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
The applicants have approached court for leave to appeal in terms of
Uniform Rule
49 (1)
(b)
and
(d)
and s 17 of the
Superior Courts Act, 10 of 2013 (“the
Superior Courts Act&rdquo
;),
to the Full Court of this Division, against the whole of the judgment
and order, including the order for costs, dated 9 September
2020
under the above case number, dismissing the applicants’ urgent
contempt of court application.
[2]
The salient provisions of
s 17
of the
Superior Courts Act, on
which
the applicants have brought this application are contained in
sub-sections (1) and (6) and provide as follows -
“
17
Leave to appeal
(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.
. . .
(6
) (a)
If leave is granted under
subsection (2)
(a)
or
(b)
to appeal against a
decision of a Division as a court of first instance consisting of a
single judge, the judge or
judges granting leave must
direct that the appeal be heard by a full court of that Division,
unless they consider-
(i)
that the decision to be appealed involves a question of law of
importance, whether because
of its general application or otherwise,
or in respect of which a decision of the Supreme Court of Appeal is
required to resolve
differences of opinion; or
(ii)
that the administration of justice, either generally or in the
particular case, requires
consideration by the Supreme Court of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme
Court of Appeal.”
[3]
For the reasons that follow hereunder, my opinion is that the appeal
has no reasonable
prospect of success; or that there is some other
compelling reason why the appeal should be heard.
[4]
The leave to appeal application emanates from the order and judgment
I handed down
on 9 September 2020, against the applicants following
their urgent application seeking an order for the respondent, Mr
Alfred Mokoditoa,
to be found in contempt of the court order granted
by Ranchod J on 27
November 2019 by virtue of the respondent having published defamatory
statements of and concerning the applicants via email and
Twitter
during the period 19 March 2020 to 20 July 2020, in contravention of
the said court order. In essence, the applicants sought
an order
committing the respondent to a period of imprisonment as to be
determined by the court.
[5]
It need to be stated that the urgent contempt application was the
second contempt
application which the applicants had launched against
the respondent emanating from the same court order of Ranchod J. The
first
contempt of court application was decided by Mngqibisa-Thusi J
on 16 March 2020, whereat the respondent was found to be in contempt
of that court order.
[6]
In opposing the urgent application, the respondent had raised a
defence on the merits
and several points
in
limine
.
Of the
in
limine
points taken by the respondent, I was of the view that the one
relating to the non-compliance with the provisions of
s 18
of the
Superior Courts Act would
be dispositive of the urgent applicant. The
urgent application was as a result decided on the issue of whether
the applicants have
complied with the provisions of
s 18
of the
Superior Courts Act. Having
considered the papers before me and the
arguments, for and against, made by the parties I concluded that the
applicants have not
complied with the requirements of
s 18
of the
Superior Courts Act in
that the filing by the respondent of a
Petition to the Supreme Court of Appeal suspended the execution of
Ranchod J’s order
and that the applicants had not applied to
uplift such suspension.
[1]
[7]
An underlying question to this main question above was whether the
provisions of
s 18
of the
Superior Courts Act applied
to contempt of
court proceedings, the applicants having contended that the said
provisions do not apply based on the ground that
an order of court
once granted should be obeyed, even if it is wrong, until set aside
by a court of law. The applicants had fortified
their argument, in
this regard, by referring to the judgment of the Supreme Court of
Appeal in
Clipsal
Australia (Pty) Ltd &
Others
v GAP Distributors & Others
,
[2]
wherein it was held that the High Court’s exercise of its
discretion to stay a contempt application pending an application
for
the review of the registration of the design that was contended for,
was not justified, in that, the order that was granted
was to be
obeyed even if it was thought to be wrong.
[8]
In my judgment, I found this case to be of no application to the
present matter because
that case dealt with the stay of an
application for contempt of court rather than the suspension of the
execution of a court order
as envisaged in
s 18
of the
Superior
Courts Act. I
found as a result that the provisions of
s 18
of the
Superior Courts Act applied
, hence the need to uplift the suspension.
A contempt of court order is a court order which is also suspended
when an application
for leave to appeal is instituted.
[9]
In this court, the applicants seek that they be granted leave to
appeal against the
second contempt judgment, including the order for
costs, to the Full Court of this Division and that the costs of the
application
for leave to appeal, including the costs occasioned by
the employment of two counsel, be costs in the appeal.
[10]
The issues the applicants seek to be determined on appeal are,
whether the subsequent filing
of a Petition for leave to appeal to
the Supreme Court of Appeal retrospectively clothe a party with
impunity for his earlier conduct
where he is in contempt of court;
and whether a court order is automatically suspended by
s 18
of the
Superior Courts Act for
the intervening period prior to which an
application is brought in terms of
s 17
of the
Superior Courts Act.
In
other words – is a party, in whose favour an order or
judgment is given, automatically precluded from executing on the
order
or judgment for a period of one month, in the circumstances,
irrespective of whether the other party lodges an appeal or not in
terms of
Section 17
of the
Superior Courts Act? The
question being
whether the order or judgment has no effect during the intervening
period.
[11]
As earlier stated, the issue that fell for determination before me
was that of non-compliance
with the provisions of
s 18
of the
Superior Courts Act. I
agree with the argument by the respondent’s
counsel that the first issue the applicants want to raise on appeal
was never
raised before me at the hearing of the urgent application
and can, in the circumstances, therefore, not be the subject of the
appeal
in this matter.
[12]
Furthermore, even if I were to consider the question, in my view,
such a question does not arise
in the circumstances of this case. The
respondent filed leave to appeal against the order or judgment of
Ranchod J on 27 November
2019 which immediately suspended the
execution of that judgment. Even though the application for leave to
appeal was dismissed,
the suspension continued to operate in the
event of further applications for leave to appeal to the Full Court
and/or the Supreme
Court of Appeal. The respondent, in this instance,
is now challenging the order or judgment of Ranchod J before the
Supreme Court
of Appeal as it is believed that the Supreme Court of
Appeal might arrive at a different conclusion. The execution of the
judgment
thus remains suspended.
[13]
The upshot is that should the order or judgment of Ranchod J, be set
aside by the Supreme Court
of Appeal, the subsequent order
per
Mnqibisa-Thusi J relating to contempt of court will automatically
fall away.
[14]
The second ground of appeal, of whether a court order is
automatically suspended, does not avail
the applicants of the relief
they seek. The argument that court orders must be obeyed, even
if they are thought to be wrong,
until set aside by a court of law,
is trite.
Section 18
of the
Superior Courts Act, however
,
provides an exception to the general rule. The section suspends the
execution of an order granted by a court as soon as the order
or
judgment becomes the subject of an application for leave to appeal.
The default position, as such, is that once an application
for leave
to appeal has been launched, the execution of a court order is
suspended. In order to execute such an order, leave for
its execution
must be granted on a substantial application to the court. It is
common cause that, in this instance, no such leave
has been applied
for.
[15]
I conclude, therefore, that leave to appeal should be refused.
[16]
Both parties have applied in case of success to be awarded costs
including costs of two counsel.
The respondent being the successful
party is entitled to costs including costs of two counsel.
[17]
The application for leave to appeal is dismissed with costs including
costs of two counsel.
E.M
KUBUSHI
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicants’
Counsel
:
Adv. A Bava SC
Adv. E.
Kromhout
Applicants’
Attorneys
:
Gildenhuys Malatji Incorporated
Respondent’s
Counsel
: Adv. M Kufa
Adv. N.
Moropene
Respondent’s
Attorneys
:
Machaba Attorneys.
Date
of hearing
: 11 January 2021
Date
of judgment
: 25 January 2021
[1]
Section 18
(6) of the
Superior Courts Act.
[2]
2010 (2) SA 289
(SCA).