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[2021] ZAGPPHC 286
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Datacentrix (Pty) Ltd v O-Line (Pty) Ltd (56269/2016) [2021] ZAGPPHC 286 (29 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
: 56269/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
DATACENTRIX
(PTY) LTD
Applicant
and
O-LINE
(PTY) LTD
Respondent
JUDGMENT
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 portion
of the judgment handed down electronically on 25
January 2021 in which the respondent’s claim against the
applicant is granted.
[2]
This court has directed that the application be determined on the
paper filed without
oral hearing as provided for in this Division’s
Consolidated Directives re Court Operations during the National State
of
Disaster issued by the Judge President on 18 September 2020.
[3]
The judgment against which leave to appeal is sought arises from a
software agreement
entered into between the parties. It was not
in dispute that the applicant is a recognised installer and
configurator of
Sage X3 software. In terms of the software agreement,
the applicant was to implement Sage X3 software in line with
requirements
that would be determined during an analysis phase. It
was common cause that the Sage X3 software was to be the backbone of
the
respondent's business. It would enable the respondent to do all
manner of financial record keeping, accounting and reporting; record
its stock levels; control its inventory; monitor the lead time on
items used in its manufacturing process; monitor and plan its
manufacturing processes; and do sales and receipts. Acting in terms
of the agreement, and from 2013 and into 2014, the applicant
installed and configured the software for the respondent. But,
according to the respondent in the trial, the installation and
configuration was defective. The respondent alleged that consequent
upon these breaches, it was entitled to cancel the agreement,
which
it duly did on 22 October 2015, and consequently, the respondent
claimed repayment of the amounts paid by it to the applicant
for the
implementation of the SAGE X3 software system. I found for the
respondent on all these issues.
[4]
The applicant has approached court for leave to appeal the said
judgment in terms
of
section 17
(1)
(a)
(i) of the
Superior Courts Act 10 of 2013
. The sub-section provides
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.
[5]
From the case law dealing with the interpretation of the section as
regards the test
employed for determining whether leave to appeal
should be granted, it is evident that the threshold has been raised.
The use of
the word “would” in the section has been held
to denote a measure of certainty that another court will differ from
the court whose judgment is sought to be appealed against. In
terms of the section, that there are reasonable prospects of
success,
should be in the opinion of the judge(s) whose judgment is sought to
be appealed. The applicant in the application for
leave to appeal
must, as a result, convince the judge(s) involved that there are
reasonable prospects of success on appeal.
[6]
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 this judgment. The said grounds of appeal
have been
fully covered and considered in the judgment the applicant
seeks to appeal.
[7]
Having considered the grounds of appeal raised by the applicant and
the arguments
for and against such application raised by the parties
in their respective heads of argument, I find that
while
the applicant criticises the judgment sought to be appealed, it does
not show that these criticisms, if justified, have the
result that an
appeal would have a reasonable prospect of success.
[8]
Therefore, in my opinion there are no reasonable prospects of success
in the appeal
on all the portions of the judgment the applicant seeks
to appeal against. This application falls to be dismissed.
[9]
In the premises, 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. S.D. Wagener SC
Applicant’s
Attorneys
:
A L Maree Incorporate
Respondent’s
Counsel
: Adv. K.D Iles
Respondent’s
Attorneys
:
Bowman Gilfillan Incorporated
Date of
hearing
: 21 April 2021
Date of
judgment
: 29 April 2021