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[2021] ZAGPPHC 192
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Samuels v Salie-Hlope (5254/2013) [2021] ZAGPPHC 192 (31 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN
CAPE DIVISION
Case
Number.:
5254/2013
NOT
REPORTABLE
In
the matter between:
ADRIAN
JOHN
SAMUELS
Applicant
and
GAYAAT
SALIE-HLOPHE
Respondent
JUDGMENT:
APPLICATION FOR LEAVE APPEAL
KUBUSHI
J
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
The application for leave to appeal is brought by the applicant
against the whole
of the judgment and order handed down
electronically on 2 March 2021 granting the relief sought by the
respondent. The applicant
seeks this application to be heard on an
urgent basis to avoid the service of the warrant of arrest to be
issued in regard to the
contempt of court order granted against him.
[2]
The application is to be determined on the papers filed without oral
hearing.
[3]
It is a trite principle of our law that leave to appeal may only be
given where the
Judge or Judges concerned are of the opinion that the
appeal would have a reasonable prospect of success or where there is
some
other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.
[1]
[4]
The grounds for the leave to appeal are succinctly stated in the
applicant’s
notice of application for leave to appeal and need
not be repeated in detail in this judgment. In short, the
application
for leave to appeal is sought mainly on the following
grounds: that I erred in refusing to grant the applicant a
postponement of
the respondent’s main application; that the
Judge President of the Western Cape, who is the husband of the
respondent, allocated
the matter when he should have recused himself;
I erred in that I granted judgment on an incorrect interpretation of
the order
granted by Samela J on 29 July 2013; and that the effect of
direct imprisonment creates compelling reasons why the appeal should
be heard.
[5]
The said grounds of appeal have been fully covered and considered in
the judgment
the applicant seeks to appeal and are, therefore,
without merit for the following reasons:
5.1
Firstly, I refused the application for postponement based on the
finding that the application
had been filed hopelessly out of time
and without any condonation application. In addition, I made a
finding that the grounds on
which the applicant relied for the
application for postponement were not sustainable and as such would
not avail him at the hearing
of the main application.
5.2
Secondly, it is not correct that the order granted on 2 March 2021
was granted on an incorrect
interpretation of the order granted by
Samela J on 29 July 2013. When the matter served before Mudau J, the
applicant was in arrears
in the payment of the maintenance that he
was ordered to pay by Samela J in the amount of R138 413, 90.
Mudau J granted an
order that the said amount be paid by no later
than 18 December 2020. The applicant failed to pay the said amount,
and was, as
such, in contempt of the order of Mudau J and
by implication that of Samela J. The order of Mudau J, which
determined
the amount that was in arrears at the time, was not
appealed and is, therefore, still of force and effect and ought to be
complied
with.
5.3
Lastly, there are no compelling reasons why the appeal should be
heard, none has been shown
to exist.
5.3.1 It is
not true that this matter was allocated for hearing by the Judge
President of the Western Cape. The Judge
President of the Western
Cape, being the husband of the respondent, was aware that he should
recuse himself from allocating this
matter. He, as a result, handed
the matter over to the Judge President of the Gauteng Division who
allocated the matter for hearing.
5.3.2
The effect of direct imprisonment is the result of the applicant’s
failure to comply with an order of court
and does not constitute a
compelling reason why this appeal should be heard.
[6]
Based on these reasons, it is my opinion that there are no reasonable
prospects of
success of the appeal. Put differently, in my opinion,
there are no reasonable prospects that another court may come to a
different
conclusion in this matter. The applications for leave to
appeal falls to be dismissed.
[7]
In the circumstances, the following order is granted:
1.
The application for leave to appeal is
dismissed with costs.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT,
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant’s
Counsel
: Adv. B. Hack
Appellant’s
Attorneys
:
Thomson Wilks Incorporated
Respondent’s
Counsel
:
Adv. J. Van Der Schyff
Respondent’s
Attorneys :
NSW Inc. Attorneys
Date of
hearing
: 31 March 2021
Date of
judgment
: 31 March 2021
[1]
See
section 17
(1) (a) (i) and (ii) of the
Superior Courts Act, 10 of
2013
.