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[2021] ZAGPPHC 219
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Moolmam v Nyati Meats CC and Another (35045/2018) [2021] ZAGPPHC 219 (15 February 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE:35045/2018
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:
19 March 2021
In
the matter between:
THEUNS
JACOBUS MOOLMAN
APPLICANT
and
NYATHI
MEATS CC (REG NO: […])
FIRST RESPONDENT
PETRUS
JOHANNES ROSSOUW
SECOND RESPONDENT
JUDGMENT
TLHAPI
J
[1]
This is an opposed application for leave to appeal premised on
section
17(1) of the Superior Courts Act 10 of 2013, (“the
Act”) which section is set out in its entirety below:
“
Section
17(1)
(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 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 withing the ambit of section 16(2);
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.”
[2]
Previously the test applied was whether there were reasonable
prospects
that another court may come to a different conclusion,
Commissioner of Inland Revenue v Tuck
1989 (4) SA 888(T).
The
threshold of reasonable prospects has now been raised by the use and
meaning attached to the words ‘only’ in 17(1)
and ‘would’
in section 17(1)(a)(i). Therefore on the entire judgement there
should be some certainty that another court
would come to a different
conclusion from the judgement the applicant seeks to appeal against.
In
Mont Chevaux Trus v Tina Goosen and 18 Others
2014 JDR
2325(LCC) at para [6]:
“
It
is clear that the threshold for granting leave to appeal a judgment
of a High Court has been raised in the new Act. The former
test
whether 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) SA 342
(T) at 343H. The use of the word “would” in
the new statute indicates a measure of certainty that another court
will
differ from the court whose judgment is sought to be appealed
against”
[3]
In S
v Smith
2012 (1) SACR 567(SCA)
at para 7, a more
stringent test is called for in that an applicant must convince a
court, on proper grounds that there are prospects
of success which
are not remote, a mere possibility is not sufficient. Therefore,
where the applicant has satisfied either of the
two identified
requirements in the Act, leave to appeal should be granted,
Minister
of Justice and Constitutional Development and Others v Southern
African Litigation Centre and Others
2016 (3)SA 317 (SCA).
[4]
Without rehashing argument of the previous hearing, I find that the
main
ground for appeal among other grounds, is based mainly on the
contention that the court erred in not referring the matter to trial
as contemplated in Rule 6 (5)(g), having found that the matter could
not be decided on the papers and where there existed a
bona fide
dispute of fact. The alleged acknowledgment of indebtedness was
erroneously ignored by the court was another ground and further,
that
the court erroneously found that the letter of demand was not served
on the registered address of the respondent and that
such rendered
the application that the first respondent be liquidated irregular.
[5]
Part of the evidence was that the cattle were seen being loaded onto
a
vehicle by a neighbour and evidence that there were witnesses to
the delivery on the first respondent. This coupled with the apparent
acknowledgement were issues which raised disputes of fact and which
constituted grounds for referral to trial. On these grounds
I find
that there are prospects in the appeal.
[6]
The following order is therefore made:
(i)
The application for leave to the Full Court of this Division, is
granted and
costs shall be in the appeal.
TLHAPI
VV
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON :
15 FEBRUARY 2021
JUDGMENT
RESERVED ON :
15 FEBRUARY
2021
ATTORNEYS
FOR THE APPLICANTS :
STARBUCK ATT.
ATTORNEYS
FOR
THE
RESPONDENTS :
PRINSLOO BEKKER ATT.