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[2021] ZAGPJHC 86
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Markit Systems (Pty) Limited v Fulcrum Group (Pty) Limited (39734/2018) [2021] ZAGPJHC 86 (7 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
Date:
7
th
July 2021
Signature: ______________________
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
39734/2018
DATE
:
7
th
july 2021
In
the matter between:
MARKIT
SYSTEMS
(PTY)
LIMITED
Plaintiff
and
FULCRUM
GROUP (PTY) LIMITED
Defendant
Coram:
Adams J
Heard
:
7 July 2021 – The ‘virtual hearing’ of the
application was conducted as a videoconference on the
BlueJeans
digital platform.
Delivered:
7 July 2021 – This judgment was
handed down electronically by circulation to the parties'
representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 14:00 on 7 July 2021.
Summary:
Application for leave to appeal
–
s
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
–
an
applicant now faces a higher and a more stringent threshold
–
leave to appeal granted
ORDER
(1)
In terms of Uniform Rule of Court
42(1)(b), the date (14 December 2014) in paragraph 2(b) of the Court
Order of the 8
th
April 2021 is deleted and preplaced with ’14 December 2018’.
(2)
The
plaintiff’s application for leave to appeal succeeds.
(3)
The plaintiff
is granted leave to appeal to the Full Court of this Division.
(4)
The cost of
this application for leave to appeal shall be costs in the appeal.
JUDGMENT [APPLICATION
FOR LEAVE TO APPEAL]
Adams
J:
[1].
I shall refer to the parties as referred
to in the main action. The plaintiff is the applicant in this
application for leave to
appeal and the respondent herein was the
defendant in the action. The plaintiff
applies
for leave to appeal against the whole of the judgment and the order,
as well as the reasons therefor, which I granted on
the 8
th
of April 2021, in terms of which I had dismissed the plaintiff’s
claim and gave judgment against it (the plaintiff) in favour
of the
defendant on the latter’s claim-in-reconvention for payment of
the sum of R4 500 000, together with interest
thereon and
costs.
[2].
At the outset, I need
to deal with a preliminary issue relating to a patent error in the
judgment and the order relating to the
defendant’s
counterclaim. Interest on the amount of R4 500 000 was
ordered to be paid from 14 December 2014, which
date, as pointed out
by Mr Berridge SC, who appeared on behalf of the plaintiff, predates
the agreement and, by all accounts could
not have become payable by
14 December 2014. Therefore, this date, being 14 December 2014, was
quite clearly a patent error. The
intention was to order payment of
interest from 14 December 2018, which is the date of the defendant’s
claim-in-reconvention.
I therefore intend granting an order in terms
of
Uniform Rule of Court 42(1)(b),
correcting the
patent error, which is such that it had
resulted in an order being granted which did not reflect my real
intention when I pronounced
the order. The error is clearly
attributable to the court itself, and I may therefore
mero motu
correct what is undoubtedly a clerical error in my order so as to
give effect to my true intention.
[3].
The application for
leave to appeal is mainly against my legal conclusion, relating to my
interpretation of the relevant clauses
of the agreement between the
parties, and the related factual findings. In sum, I had concluded in
my judgment that the defendant
was entitled to lawfully cancel the
agreement on the basis of one of the provisions of the cancelation
clauses of the agreement.
The essence of the plaintiff’s
application for leave to appeal is captured, in my view, in the
following extract from the
plaintiff’s notice of application
for leave to appeal:
‘
1.
The Honourable Court should have found that the plaintiff had
discharged its onus, on a balance
of probabilities, of establishing
those matters which it bore the onus of establishing, namely:
1.1
that there was no inability or failure
to reach agreement on the details to be documented in the Business
Requirement Documents
("BRDs") as required by clause
16(c)(v) read with clause 2 of the Technology Agreement ("the
Agreement"), and
consequently there were no grounds for
cancellation of the Agreement in respect of this clause, or at all;’
[4].
The plaintiff also
appeals against my factual finding that the reason why the BRDs were
not agreed or finalised was not due to any
breaches of the agreement
on the part of the defendant.
The
court
a quo
should have found, so the plaintiff submits, that
the
defendant unlawfully and without any legitimate cause purported to
cancel
the
agreement on 13 December 2017 and that entitled the plaintiff to the
damages it sought. The plaintiff therefore contends that
I had erred
and misdirected myself in not finding that the defendant breached the
agreement and such breach entitles the plaintiff
to the damages it
sought.
[5].
Nothing new has been raised by the
plaintiff in this application for leave to appeal. In my original
judgment, I have dealt with
most of the issues raised and it is not
necessary to repeat those in full.
Suffice to restate what I said in my
judgment, namely that applying the applicable legal principles
relating to contracts and on
a proper interpretation of the
agreement, the defendant was entitled to cancel the agreement, which
it did during December 2017.
[6].
The traditional test in deciding whether
leave to appeal should be granted was whether there is a reasonable
prospect that another
court may come to a different conclusion to
that reached by me in my judgment. This approach has now been
codified in
s 17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
,
which came into operation on the 23
rd
of August 2013, and which provides that leave to appeal may only be
given where the judge concerned is of the opinion that ‘
the
appeal would have a reasonable prospect of success’.
[7].
In
Mont
Chevaux Trust v Tina Goosen,
LCC
14R/2014 (unreported), the Land Claims Court held (in an
obiter
dictum
) that the wording of this
subsection raised the bar of the test that now has to be applied to
the merits of the proposed appeal
before leave should be granted. I
agree with that view, which has also now been endorsed by the SCA in
an unreported judgment in
Notshokovu v
S,
case no: 157/2015
[2016] ZASCA 112
(7 September 2016). In that matter the SCA remarked that an appellant
now faces a higher and a more stringent threshold, in terms
of the
Superior Court Act 10 of 2013 compared to that under the provisions
of the repealed Supreme Court Act 59 of 1959. The applicable
legal
principle as enunciated in
Mont Chevaux
has also now been endorsed by the Full Court of the Gauteng Division
of the High Court in Pretoria 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] ZAGPPHC 489 (24 June 2016).
[8].
I am persuaded that
the issues raised by the plaintiff in its application for leave to
appeal are issues in respect of which another
court is likely to
reach different conclusions to those reached by me. I am therefore of
the view that there are reasonable prospects
of another court coming
to legal conclusions different from those reached by me. The appeal
therefore, in my view, has a reasonable
prospect of success.
[9].
Leave to appeal
should therefore be granted.
[10].
Having said that, this matter is not of
a such complex nature that it should be referred to the Supreme Court
of Appeal. And I therefore
intend granting leave to appeal to the
Full Court of this Division.
Order
In
the circumstances, the following order is made:
(1)
In terms of Uniform Rule of Court
42(1)(b), the date (14 December 2014) in paragraph 2(b) of the Court
Order of the 8
th
April 2021 is deleted and preplaced with ’14 December 2018’.
(2)
The
plaintiff’s application for leave to appeal succeeds.
(3)
The plaintiff
is granted leave to appeal to the Full Court of this Division.
(4)
The costs of
this application for leave to appeal shall be costs in the appeal.
_________________________________
L R ADAMS
Judge of the High
Court
Gauteng Local
Division, Johannesburg
HEARD ON:
7 July 2021 – in
a ‘virtual hearing’ during a series of
videoconferences on the
BlueJeans
digital platform
JUDGMENT DATE:
7
th
July
2021 – judgment handed down electronically
FOR THE PLAINTIFF:
Adv Bruce Berridge SC
INSTRUCTED BY:
Clyde & Co
Incorporated
FOR THE DEFENDANT:
Adv L J Morison SC,
together with Adv Ntombi Mncube
INSTRUCTED BY:
Nicqui
Galaktiou Incorporated