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[2021] ZAGPPHC 239
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Olua v Standard Bank of South Africa Ltd and Another (43883/2016) [2021] ZAGPPHC 239 (12 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: 43883/2016
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
12 APRIL 2021
In the matter between:
AMAECHI
OLUA
Applicant
and
STANDARD BANK OF SOUTH
AFRICA LTD
First
Respondent
SHERIFF
OF THE HIGH COURT OF SOUTH AFRICA,
CENTURION
WEST,
PRETORIA
Second
Respondent
In re
STANDARD BANK OF SOUTH
AFRICA LTD
Plaintiff
and
AMAECHI
OLUA
Defendant
JUDGMENT IN LEAVE TO
APPEAL
NGALWANA AJ
Introduction
[1]
This is an application for leave to appeal against a judgment I
handed down on 7 December 2020.
[2]
It was brought to my attention
on 4 March 2021 although it appears to have
been uploaded
on CaseLines on 18 January
2021.
[3]
Upon learning of the
application, I requested the parties to submit heads of
argument which would enable me
to determine whether or not a need to hear oral
argument arises. Having
considered both sets of heads of argument, for which I am grateful to
both legal representatives, and the
grounds of appeal advanced on
behalf of the applicant, I am satisfied that it is not necessary to
schedule a date for oral argument.
Given that the issues have already
been identified, argument has already been advanced on the merits of
those issues, and the applicable
standard in applications of this
kind is capable of being determined on written argument, there is in
my view no pressing need
for oral argument. In the final analysis,
both parties have already been heard orally, and their written
submissions have been
taken into account.
The
Standard
[4]
It is axiomatic that the
applicable standard in applications for leave to appeal has
traditionally
been
whether there is a
reasonable
possibility that another
Court
may come to a different conclusion than that reached by the Court of
first instance.
[5]
Now the position is governed by
the
Superior Courts Act 10 of 2013
which says leave to appeal may be
granted where
5.1
the appeal
would
have a reasonable prospect
of success;
[1]
or
5.2
there is some compelling reason
why the appeal should be heard, including conflicting judgments on
the matter under consideration;2
[2]
or
5.3
the decision sought will have a
practical effect or result;
[3]
and
5.4
the appeal would lead to a just
and prompt resolution of the real issues between the parties even
where the decision sought to be
appealed does not dispose of all the
issues in the case
[4]
Analysis
[6]
On the undisputed facts of this
case the application meets none of these requirements. The
applicant posits
the wrong standard. In his
notice of
application
for leave to appeal he
expresses the applicable standard as being whether another
court
“
may
come to a different conclusion”
[5]
.
This is not the applicable
standard. The threshold standard is whether another could
would
reach a different
conclusion. Thus, the applicant starts off on a wrong footing by
setting the threshold standard
lower than the law requires.
[7]
The first respondent would have
this court dismiss the application on that ground alone. That, in my
view, would be inappropriate.
What matters is not the threshold
standard the applicant posits; it is rather whether the legal
argument advanced in support of
the grounds of appeal identified
meets the required standard. It is that to which I now turn.
[8]
Leave to appeal is not there
merely for the asking. That is why the legislature has designed a
threshold standard for it in the
Superior Courts Act. It
is often
tempting for a Judge who has many other cases to attend to, and for
an Acting Judge (whose stint has ended) who is called
upon to revisit
his judgment that he delivered months previously, and who has other
remunerative work to do,
to
seek to unburden himself by simply granting leave thereby making his
problem
the
appeal bench’s problem,
or refusing leave on the
thinnest of bases: such as the basis on which I am invited by the
first respondent to dismiss this application.
Neither approach is
helpful either to the applicant or to the appeal bench. It is also
not helpful in the development of jurisprudence
on applications for
leave to appeal.
[9]
This is not a case for the
development of such jurisprudence. In my view, the application
discloses no prospects of succeeding on
appeal. Many of the grounds
advanced traverse new factual material that was never raised in the
pleadings before court in the main
application. Much of that
material, in any event, in my view does not constitute grounds of
appeal but rather, possibly, unmeritorious
grounds of review. What is
more, the applicant seeks to challenge
court proceedings to which he
and his counsel voluntarily participated after being
afforded
ample opportunity by this court
to consult.
[10]
In truth, this
application, it seems to me, is a continuation of the abuse of court
process that this court identified in the main
judgment. The nature
of the grounds advanced, the argument mounted, and failure to comply
with this court’s
directions on the filing of
heads of argument, would ordinarily justify an adverse costs order on
an attorney and client scale which
the applicant escaped (by a
whisker) in the main application. He was, at noon on Tuesday 9 March
2021, directed to file heads of
argument by 12 noon on Friday 12
March 2021 so that the first respondent could file its heads by 12
noon on Friday
19
March 2021. The issues were clear.
A lengthy 26-page notice of
application for leave to
appeal had been filed in the
preparation of which much of the work would already have been done,
and I had only the month of March
to work on this judgment given the
busy couple of months that lay ahead in my busy practice. I did not
wish to delay
the
handing
down
of
judgment
in
this
case
thus
prejudicing
the
parties. Without any
condonation
application
for
the late filing, but merely an explanation at the tail end of his
heads of argument, the applicant only delivered his heads
of argument
on Thursday 18 March 2021.
They
reached me on Tuesday 23 March 2021. Consequentially, the first
respondent filed on Sunday 21 March 2021 without the benefit
of the
applicant’s heads. Nevertheless, in my discretion, I shall
resist the urge to order a punitive costs order against
the
applicant.
Order
Leave to appeal is
dismissed with costs
A
NGALWANA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered: This judgement
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand-down is deemed to be
12 April 2021.
Date heads received: 21
March 2021 Uploaded on CaseLines for First Respondent 23 March 2021
Delivered by email for Applicant
Date
of judgment: 12 April 2021
Appearances:
Attorneys for the
Applicant:
B L Nkuna Inc
(info@blnkunainc.co.za)
Counsel for the
Applicant: Adv.
T Daniels
(079 251 1102)
(thabe40(algmail.com)
lAttorneys for the 1
st
Respondent: Findlay & Niemeyer Inc
(philip@findlay.co.za
/ vaf@findlay.co.za)
Counsel
for
the
1
st
Respondent:
Adv. Z Schoeman (072 123 2614)
(ziaan@webmail.co.za)
[1]
Section
17(1)(a)(i)
[2]
Section
17(1)(a)(ii)
[3]
The effect of
section 17(1)(b)
read together with
section 16(2)(a)(i)
is that
where the decision sought will have no practical effect or result,
the appeal may be dismissed on this ground alone.
[4]
Section 17(1)(c)
[5]
CaseLines 063-25
para 28