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[2021] ZAGPPHC 61
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Giyani Engineering and Construction CC and Others v Maps Civil and Landscaping CC and Others (95141/2015) [2021] ZAGPPHC 61 (9 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 95141/2015
In
the matter between:
GIYANI
ENGINEERING AND CONSULTING CC
First
Applicant
GIYANI
GLORIA MHLANGA
Second
Applicant
CALVIN
MUTIZE
Third
Applicant
And
MAPS CIVIL
AND LANDSCAPING CC
First
Respondent
BRIDGET
THANDEKA DUMA
Second
Respondent
MOSES
MAPOLISA
Third
Respondent
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date for hand-down
is 9
February 2021.
JUDGMENT
AVVAKOUMIDES
AJ
1.
This is an application for leave to appeal against a
judgment of this
Court handed down on 5 December 2019. Despite the application
having been filed on 25 February 2020, the
application for leave to
appeal only came to my knowledge during December 2020 on, when an
application in terms of rule 47(3),
between the same parties, came
before me by virtual hearing. On that occasion I was made aware
of an order made by Roux AJ
dated 3 December 2019 in terms of which
the Respondents (Applicants in this application) were ordered to
secure legal representation
for the First Applicant, which is a legal
entity.
2.
It is common cause that the Applicants have not yet
secured legal
representation for and on behalf of the First Applicant. During
the initial debate with counsel for the Applicants
in the rule 47(3)
application and Mr Mutize for the Respondents in December 2020, both
agreed that there had not been compliance
with the order of Roux AJ
and consequently the application in terms of rule 47 was removed from
the roll before me.
3.
At the commencement of this application, I explained
in detail to Mr
Mutize, seeking leave to appeal against the judgment of 5 December
2019, that I must be persuaded, in accordance
with section 17 of the
Superior Court Act 10 of 2013, that the appeal would have a
reasonable prospect of success or there is some
other compelling
reason why the appeal should be heard. I reiterated to Mr Mutize that
he must point out, with reference to the
notice of the application
for leave to appeal, where I had erred, and what I should have held
instead of the orders granted.
4.
Notwithstanding having made it pertinently clear to
Mr Mutize, he
proceeded to raise issues pertaining to the merits of the main
litigation between the Applicants and the Respondents
and failed to
move the application for leave to appeal in compliance with section
17 aforesaid.
5.
During the debate with Mr Mutize I, now knowing of the
order of Roux
AJ, canvassed with Mr Mutize whether he was capable of representing
the First Applicant and he insisted that the
order of Roux AJ was in
respect to the rule 47 application under a separate case number to
the one at hand. There are 10 cases
pending between the same parties.
In the exercise of discretion, I ruled that it would be more
convenient to dispose of the litigation
before me without embarking
on a technical exercise as to whether the order of Roux AJ under a
separate case number applied to
some ten other pending cases between
the Applicants and the Respondents.
6.
Consequently, Mr Mutize was permitted to continue addressing
me and
notwithstanding reminders that he must move the application for leave
to appeal to show where the court had erred, he persisted
addressing
me on the merits of the main litigation.
7.
The attorney appearing for the Respondents in the application
for
leave to appeal likewise, and despite admonishment to curtail his
submissions to the application for leave to appeal, also
delved into
the merits of the main litigation between the parties. Both he
and Mr Mutize accused each other of underhanded
tactics in the
litigation.
8.
Having perused and considered the application for leave to
appeal
before me and having heard the attorney for the Respondents and Mr
Mutize on behalf of the Applicants, I am not persuaded
that another
court would come to a different conclusion.
9.
Consequently, the application is dismissed with costs.
G.T.
AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Representation
for parties:
On behalf of
Applicants:
Mr C (Mutize in person)
On behalf of
Respondents:
Mr Gwangagara
Instructed
by:
Gwangagwara Attorneys