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[2021] ZAGPJHC 886
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Holdsworth-Jenkins and Another v Worldwind Logistics (Pty) Ltd In re: Worldwind Logistics (Pty) Limited v Holtsworths-Jenkins and Another (28255/2018) [2021] ZAGPJHC 886 (5 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 28255/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
5 July 2021
In
the matter between:
HOLDSWORTH-JENKINS:
JAQUELINE-JANE
First Applicant
JENKINS:
LEE
EVAN
Second Applicant
And
WORLDWIND
LOGISTICS (PTY) LTD
Respondent
In
re:
WORLDWIND
LOGISTICS (PTY) LIMITED
APPLICANT
(registration
no: ……….)
and
HOLTSWORTHS-JENKINS;
JACQUELINE
JANE
JENKINS
FIRST RESPONDENT
LEE
EVAN
SECOND RESPONDENT
Coram:
Majavu
AJ
Heard
: 17
June 2021
Delivered:
5
July 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
digital system of the GLD and by release to SAFLII. The date and time
for hand-down is deemed to be 13h00 on 5 July 2021
Summary:
Application for leave to appeal against judgment handed down on 16
March 2021, no reasonable prospects that another court
would arrive
at a different conclusion, neither are there any compelling reasons
for the appeal to be allowed, application dismissed
with costs on
attorney and client scale, including costs consequent upon the
employment of counsel.
ORDER
(a)
Application for leave to appeal is dismissed with costs, on a party
and
party scale, including costs consequent upon the employment of
counsel.
Majavu
AJ
Introduction
[1]
This is an opposed application for leave to appeal against my
judgement handed down
on 16 March 2021. None of the parties submitted
heads of argument. For ease of reference, the parties in this
application will
be referred as in the application
a quo
.
[2]
Needless to say, and only to the extent that the respondents
(applicant for leave
to appeal) deemed it necessary to foreshadow the
grounds with a disclaimer
[1]
, I
have no reason to doubt that this application is noted with due
respect to me and the court. I assure the respondents that I
take no
umbrage at the fact that an application for leave to appeal has been
launched against my judgement. Quite frankly, this
disclaimer was not
necessary.
[2]
I battled to distil the exact nature of the grounds on which this
application is mounted,
but nevertheless appreciate the general
import, as paraphrased below. What ought to be clear and concise
grounds of appeal, read
like heads of argument.
General
thrust of the grounds
[3]
it is contended that I erred:
(a)
in finding that the facts deposed to by the applicant representatives
may be used as common cause facts
in order to establish relief prayed
for.
(b)
in not finding that in opposed application proceedings, the factual
version of the applicant can only
be employed to the extent that it
is admitted by the respondents, together with all other facts deposed
to by the respondents (the
Plascon Evans Rule)
(c)
in not finding that the suitability of the premises for the purpose
was further supported by the subsequent
conduct of the applicants’
representatives, to the extent that a prior inspection did not report
any defects to have been
material to the extent of rendering it unfit
for purpose for which it was rented.
(d)
in not finding that the applicant by its own conduct up to 11 January
2018, repudiated the said lease
agreement.
(e)
in not finding that notwithstanding the fact that immediately upon
receiving notice or complaint regarding
the state of disrepair of the
property, the lessor immediately undertook steps to forthwith address
the complaints.
(f)
in not finding that there was any obligation on the lessors to
address the complaints other than
those few complaints, for which it
was liable in terms of the lease agreement.
(g)
in finding that, handing over the premises in an allegedly defective
state amounts to a repudiation
by the lessors.
(h)
in not finding that the only factual issue for determination was
whether the letters by the lessee in
which it repudiates the
agreement and the act of retaining the key amount to a repudiation in
law.
(i)
in finding that the Rental Housing Act (“the RHA”) is
applicable.
(j)
in finding that the Consumer Protection Act (“the CPA”)
is applicable, presumably
as a result of an
ex post facto
desktop research undertaken by the lessors’ (respondents’)
attorneys after the matter was argued before me, with reference
to
their statutorily prescribed threshold relating to the turnover of
the affected company, the applicant, (lesee). In fact, belatedly
as
recorded in paragraph 23 of the application for leave to appeal, it
is indicated that “
the lessors in turn bringing an
application to the above honourable court of appeal to admit this
evidence as proof that the lessee
company is not subject to the CPA
and that it has deliberately misled the above honourable court a quo
in this regard.”
In my view, this does not assist the
respondents to meet the applicable threshold with reference to the
application for leave to
appeal, which I will more fully deal with
here under. There is no merit in this ground and I accordingly
dispose of it forthwith.
This is an abuse of the appeal process.
Other compelling reasons
(k)
it is further contended that there are further compelling reasons why
the appeal should be heard, including
matters of public interest and
legal certainty involving some applicable acts of Parliament, with
reference to both the RHA and
CPA. This is couched in general terms.
Counter claim
(l)
lastly, it is further contended that I erred in not granting the
counterclaim, alternatively,
in not permitting the matter to proceed
to trial to the extent that there were disputes of fact.
[4]
A useful starting point is
section 17(1)
of the
Superior Courts Act
10 of 2013
which states that:
(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;
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgements on the matter under consideration,…”
[5]
Principally, the above is the applicable framework or lens through
which any application
for leave to appeal must be assessed. It is
clear that the test is higher now.
[6]
The stricter or higher bar so to speak, when adjudicating application
for leave to
appeal, was also followed in the matter of the Acting
National Director of Public Prosecution v Democratic Alliance
(Society for
the protection of our Constitution and Amicus
Curiae)
[2]
:
The superior courts act
has raised the bar for granting leave to appeal in the Mount Chevaux
(IT 2012/28) v Tina Goosen & 18
others, Bertelsmann J held as
follow(s):
“
it is clear
that the threshold for granting leave to appeal against the judgement
of the High Court has been raised in the new act.
The former test
where leave to appeal should be granted was a reasonable prospect
that another court might come to a different
conclusion, see Van
Heerden v Cronwright & Others 1985 (2) as a 342 (T) at 343H. The
use of the word
“would”
in the new statute indicates a
major
of certainty
that
another court
will
differ
from the court whose judgement you sought to be appealed against”
[emphasis added]. This new (stricter test approach), which I am bound
by, was confirmed by the Supreme Court of appeals (SCA) in
S
v Notshokovu
[3]
, albeit
in
criminal proceedings, however in my view, the same principle is of
equal application in the civil context. In that case the court
had
this to say:
“
an appellant,
on the other hand, faces a higher and stringent threshold, in terms
of the (superior courts) act compared to the provisions
of the
repealed Supreme Court Act 59 of 1959. (See Van Wyk v S, Galela v S
[2014] ZASCA152; 2015(1) SACR584(SCA) para [14]”
[7]
I deemed it appropriate to sketch the applicable test against which
this application
would be adjudicated. I will now deal with the
essence of the grounds on which this application is mounted, against
the applicable
test.
[8]
It also bears mentioning at this early stage that, the need to obtain
leave to appeal
is a necessary filter, through which unmeritorious
appeals
do not
consume limited and overstretched judicial
resources. The same mischief seems to be exactly what the
introduction of the regime
of an application for leave to appeal is
meant to obviate.
[9]
The fact that the grounds appear to be intertwined, should in no way
defocus
the court from the real and applicable test,
regardless of how well the “would-be appellant” appears
to be re arguing
the case.
Turning
to the grounds
[10]
As observed above, the general
tenor
of the grounds relates to
matters on which I have clearly expressed myself in the judgement
a
quo
. To the extent that I reasoned and eventually made findings
regarding the applicability of the RHA and the CPA, I remain
unpersuaded
that there exist any reasonable prospects of another
court coming to a different conclusion to the one I did. I stand by
the earlier
reasons in the judgement.
[11]
On the question of the admissibility of facts that are otherwise
inadmissible, it is clear that
the issues that I found to be common
cause, were indeed common cause. The probative value and weight which
I attached to them,
is a matter solely for the discretion of the
court, which discretion must be exercised judiciously. On the facts
before me, I did
exercise that discretion judiciously and not in
violation of the Plascon Evans rule, as contended by the respondents.
In fact,
I was satisfied that notwithstanding the that there is a
dispute of facts (as contended for by the respondents), which I
disagree
with, I was nevertheless satisfied that the facts as averred
by the applicant and in large measure admitted by the respondents.
I
held the view that such disputes were indeed
not irresoluble
on the papers. I will accordingly not over elaborate on the
well-entrenched principle, lest I further obscure the matter.
Counter
claim
[12]
It remains my considered view that the counterclaim was correctly
dismissed. There exists no
possibility that another court will come a
different decision.
Conclusion
[13]
It is my considered view that, both in the hearing
a
quo
and
in this application, the respondents have not advanced any cogent
grounds, which could lead another court to arriving at a
different
decision. There are simply
no
prospects
of success, let alone reasonable. I am also unable to find any other
special circumstances or any, said to be in the public
interest, in
favour of granting leave to appeal. The issues engaged in the
judgment are plain and simple. The fact that the respondents
are
aggrieved by the decision reached, does not in of themselves, morph
into public interest or exceptional circumstances, nor
have they
pointed out such. Merely taking issue with the court’s
evaluation and/or assessment of the facts and applicable
pieces of
legislation before it, hardly passes muster. An example of some, but
by no means exhaustive of what could constitute
special circumstances
were listed as follows in the case of
Westinghouse
Brake and Equipment
[4]
(a)
the appeal raises a substantial point of law;
(b)
the matter is of very great importance to the parties or of great
public importance;
and
(c)
where refusal of leave to appeal would probably result in a manifest
denial of justice.
[14]
But for the fact that both parties feel strongly about their
respective stance, none of the other
questions were, in my view,
answered in the affirmative. It is unsurprising that in litigation,
the litigants would generally feel
very strongly about the importance
of the cases. In this instance, and I put it to both parties’
counsels and it appears
that the ever increasing costs related to
this matter, appears to be of little concern to them, when adjudged
against the relative
lower
quantum
at the centre of the
dispute. I hasten to add that, it remains the litigants’ right
to ventilate that disputes through the
courts and to do so to their
satisfaction, however, it is always important not to lose sight of
the attendant costs. I leave that
observation at that.
[15]
For these reasons, I make the following order:
Order
(i)
The application for leave to appeal is dismissed with costs, on a
party and
party scale, including the costs consequent upon the
employment of counsel.
Z
M P MAJAVU
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
17 June 2021
JUDGMENT
DATE:
5 July 2021
FOR
THE APPLICANT:
Adv C van der Merwe
INSTRUCTED
BY:
Minnie & Du Preez Inc.
FOR
THE RESPONDENTS :
Adv C Van der Spuy
INSTRUCTED
BY:
Lanham – Love Attorneys
[1]
"all
submissions and contentions reflected here in and made with respect
and deference due to the High Court, the judgement
and the judge
concerned." The
[2]
2016 JD R1211
(GP at page 13
[3]
2016 JDR 1647 (SCA)
[4]
Westinghouse Brake and Equipment v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A)