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[2021] ZAGPPHC 281
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Cooper v Smit and Others (66075/2018) [2021] ZAGPPHC 281 (28 April 2021)
REPUBLIC
OF SOUTH AFRICA
I
N
THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
D
I
VISION
,
PRETORIA
Case
no:
66075/2018
NOT
REPORTABLE
NOT
OF INTERERST TO OTHER JUDGES
REVISED
In
th
e
m
a
tt
e
r
b
e
twe
e
n
:
CRAIG
STANLEY
COOPER
Ap
p
li
ca
nt
a
nd
BABSIE
SMIT
Fir
s
t
Re
s
pond
e
nt
SA
HOME LOANS (PTY) LTD
S
econ
d
R
espo
nd
e
nt
REGISTRAR
OF
DEEDS
Third
R
es
p
o
nd
e
nt
In
re:
CRAIG
STANLEY
COOPER
Applicant
and
BABSIE
SMIT
First Respondent
SA
HOME
LOANS
Second
Respondent
REGISTRAR
OF
DEEDS
Third
Respondent
JUDGMENT
IN APPLICATION FOR
LEAVE TO APPEAL
Delivered:
This
judgment
was
handed down
electronically
by
circulation
to the
parties'
l
egal
representatives by
e-mail.
The
date
and
time
for hand down
is deemed
to
be
12h00 on
the
28
th
April
2021.
SHABALALA,
AJ INTRODUCTION
1.
This
is
an
application
for
l
eave
to
appeal
by the
First
Respondent
to
the
Full
Bench of this
division,
alternatively
the
Supreme
Court
of
Appea
l
,
against
the
whole
judgment delivered
on
19
March
2020.
The
application
for
l
eave
to
appeal
is
opposed
by
the Applicants.
2.
For the
sake
of convenience,
I
will
refer
to
the
parties
as
they
are cited
in
the
main
judgment.
After
delivery
of
the
judgment
on
19 March
2020,
the First
R
es
pondent
fil
e
d
a
noti
ce
of appli
c
ation
for
l
ea
v
e
to
app
ea
l
whi
c
h
c
ont
a
in
e
d
th
e
grounds
of
appeal.
The
notice
of
application
for
leave
was
filed together
with
a
condonation
application
for
late filing of the
l
eave
application.
3.
The
condonation
application
was
opposed
by the
Applicant
until
at
the
hearing
of the
leave application
.
Counsel
for Appl
i
cant
formally
withdrew
the Applicant's
opposition
to
the
condonation
application.
Upon
consideration
of
the
First
Respondent's
condonation
application
which
stood unopposed
after the withdrawal of
opposition, I
granted
condonation
for
the
late
filing
of
the
leave
application.
4.
The
l
eave
application
was
subsequently
argued
by the
parties.
THE
TEST
IN
AN APPLICATION
FOR
LEAVE TO APPEAL
5.
The
applications
for
leave to
appeal
are governed
by
ss
16
and
17
of
the
Superior
Court
Act 10
of
2013.
Section
17
makes
provisions
for
leave
to
appeal
to
be
granted
where
the
presiding judge
is
of the
opinion
that
either
the
appeal
would
have
a
reasonable
prospect
of
success
or
there
is
some
compelling
reason
why
the
appeal
should
be
heard,
including
whether
there
are
conflicting
judgments
on
the
matter
under
consideration.
6.
A reasonable
prospect
of
success
has
previously been
defined
to
mean
that there
is
a
reasonable
possibility that
another court
may
come
to
a
different
decision.
7.
With the enactment
of section
17 of the Act,
the test
has now obtained
statutory force
and
is to
be
applied
using
the
word
"would"
in deciding
whether
to
grant
l
eave.
I
n
other words, the test
is
would another court
come to a different
decision.
8.
In
Notshokovu
v S
(157/15)
[2016] ZASCA
112
(7 September
2016)
at paragraph
2,
it was
held
that
an
appellant
faces
a
higher
and
more
stringent
threshold
in
terms of the
new Act compared
to the
provisions
of the repealed
Supreme
Court
Act 59 of 1959. (See
Van Wyk v S,
Gale/a v S
[2014]
ZASCA
152
;
2015 (1) SACR 584
(SCA) para [14].
9.
In
Acting National
Director of
Public
Prosecutions and Others v
Democratic
Alliance In
Re:
Democratic
Alliance v
Acting National
Director
of
Public
Prosecutions
and
Others
(19577/09)
[2016]
ZAG
PPHC
489
(24
June
2016),
Ledwaba
DJP, writing for
the
full
court,
considered
the
test
as
envisaged
in
s17
of the
Superior
Courts Act. At
paragraph
25
of
the
aforementioned
judgment,
he dealt with the
test
set
out
in
the
Mont
Chevaux
Trust
(IT2012/28)
v
Tina
Goosen
&
18
Others
case
where Bertelsmann J
held
the
following:
"It
is
clear
that the threshold
for
granting
l
eave
to appeal against
the 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
and 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
appe
a
l
ed
against."
10.
In
this particular
matter, I
would
have
to
determine whether
another
court
would
[my emphasis]
come
to a
different decision.
I
have
considered
the
application
for
leave to
appeal
and oral submissions
of the parties.
Furthermore,
I
extend
my
gratitude and appreciation
to
counsel
for
th
e
submissions
made
therein.
11.
The
grounds
for
the
leave
to
appeal
are
succinctly stated in
the First
Respondent's
notice of
application for
leave to
appeal
and need not be
repeated
in
th
i
s
judgment.
Suffice
to
state
that
this
court
looked
at
and
studied
the
main judgment
and the
aforementioned
grounds
of appeal.
12.
I
am satisfied that
all the
issues
raised in this application
for
l
eave
to appeal were
fully
covered
and
considered
in
the
judgment.
I am
therefore of
the
view
that
there are
no
reasonable prospects
of
success of
the
appeal. Put
differently
,
I
hold
the view that there is no
prospect that another court, sitting
as
court of appeal,
may come to a different
conclusion in this case than what this court had arrived
at.
Therefore, the
application for leave to appeal
falls to be
dismisse
d
.
13.
In the
circumstances,
the following
order
is made:
Th
e
application
for
leave
to
appeal
is dismissed
with
costs
.
SHABALALA,
AJ
Acting
Judge
of
the
High
Court
GAUTENG
DIVISION
,
PRETORIA
DATE
OF JUDGMENT:
28
April
2021.
APPEARANCES:
Applicant's
Counsel:
Adv
J.R.
Minnaar
Appli
ca
nt's
Att
o
rn
eys:
Ro
es
t
off
Attorneys
First
Respondent's
Counsel:
Adv
Z
.
Kriel
First
Respondent's
Attorneys:
Schoeman
Esterhuizen