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[2021] ZAGPJHC 628
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Griffin Steamworks (Pty) Limited v Thrive Entrepreneurs (Pty) Limited (37624/2019) [2021] ZAGPJHC 628 (10 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 37624/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
10
August 2021
In
the matter between:
Griffin
Steamworks (Pty) Limited
Applicant
and
Thrive
Entrepreneurs (Pty) Limited
Respondent
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email. The date and time of
hand down is deemed to be 10 August 2021.
JUDGMENT
Moosajee
AJ:
[1]
This is an application for
leave to appeal against the whole of the order and judgment delivered
by me during December 2020.
[2]
Griffin Steamworks (Pty)
Limited (“
Griffin”
)
contends that an appeal has reasonable prospects of success and that
I erred in at least three respects.
[3]
It is now settled law that
Section 17(1)(a)(i)
of the
Superior Courts Act, 2013
has raised the
bar in applications for leave to appeal. A judge may now only grant
leave to appeal if the judge is of the opinion
that the appeal would
(not may) have a reasonable prospect of success.
[4]
In
the case of
Acting
National Director of Public Prosecutions & Others v Democratic
Alliance
[1]
the Court cited
Bertelsmann J as follows:
“
It
is clear that the threshold for granting leave to appeal against a
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
…
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 appealed against.
”
[5]
This
judgment has been followed on numerous occasions by our courts
[2]
.
The new heightened bar that one has to comply with in order to
succeed with an application for leave to appeal, is based on sound
reasons of public policy, namely to ensure that scarce judicial
resources are not spent on appeals that lack merit
[3]
.
[6]
Griffin contends that I
erred by failing to make a determination as to whether the respondent
(“
Thrive”
) was
unable to pay its debts as envisaged by
Section 345(f)
read with
Section 345(1)(c) of the Companies Act, 1973 read with item 9 of
Schedule 5 of the
Companies Act, 2008
.
[7]
Griffin argues that I failed
to make a finding in terms of
Section 345(1)(c).
There is good reason
why I did not make such a finding. Counsel for Griffin did not rely
on
Section 345(1)(c)
when the matter was argued before me.
[8]
In paragraph 6 of the
founding affidavit filed in this matter, the following is alleged:
“
This is an
application for the winding-up of the respondent on the basis that it
is unable to pay its debts, as contemplated in
section 344(f)
read
with section 345(1) of the Companies Act No 61 of 1973 … and
item 9 of Schedule 5 of the
Companies Act 71 of 2008
.
”
[9]
Further, in paragraphs 36
and 37 of the founding affidavit, the following allegations appear:
“
36.
On 26 April 2019, the applicant’s attorney of record being
Stanley Mervyn Rothbart (Rothbart) of Rothbart
Inc … caused a
letter in terms of section 345(1)(a)(i) of the Companies Act 61 of
1973 … calling upon the respondent
to remedy its breach to be
delivered to the respondent.
37.
Notwithstanding
demand, the respondent has failed to remedy its breach and make
payment of the sum of R721 215.58 to the applicant.
”
[10]
There is no specific
reference to Section 345(1)(c) of the Companies Act, 1973 in the
founding affidavit and neither was this referred
to in the
applicant’s heads of argument or during argument before me.
[11]
I therefore find that there
is no merit to the suggestion that I had erred in not making a
finding based on Section 345(1)(c) of
the Companies Act, 1973.
[12]
Griffin also contends that I
erred in failing to accept a supplementary affidavit on its behalf.
It is common cause that an application
for leave to file the
supplementary affidavit was not filed and Thrive did not consent to
the filing of such a supplementary affidavit.
Griffin’s counsel
correctly, in my view, conceded that I had a discretion in regard to
the acceptance of the supplementary
affidavit. I do not believe that
I exercised my discretion incorrectly, in circumstances where there
was no application for leave
to file the supplementary affidavit and
no subsequent explanation for why such an application was not
timeously filed. I am therefore
of the view that there is no merit to
the second ground of appeal.
[13]
Griffin contends that I
erred in finding that the Section 345(1)(a) letter was not served on
Thrive.
[14]
In paragraph 36 of the
founding affidavit, Griffin alleged that it’s attorney caused
the letter in terms of Section 345(1)(a)
of the Companies Act, 1973
to be delivered to Thrive’s registered address and the letter
and proof of service was attached
to the founding affidavit as
annexure “FA9”. The letter was attached to the founding
affidavit as annexure “FA9”,
but proof of service was not
attached.
[15]
Thrive denied the contents
of paragraph 36 of the founding affidavit, in its answering
affidavit.
[16]
Despite this, Griffon did
not deal with the issue any further in the replying affidavit and did
not take up the opportunity in reply
to attach a proof of delivery of
the letter.
[17]
In these circumstances,
there is no merit to Griffin’s contention that I erred in
finding that the Section 345(1)(a) letter
was not served on Thrive.
[18]
I do not believe that
another court would come to a different conclusion on any of the
issues underlying Griffon’s application
for leave to appeal.
[19]
In the circumstances, the
application for leave to appeal falls to be dismissed and I make the
following order:
(a)
The application for leave to
appeal is dismissed.
MOOSAJEE
AJ
Acting
Judge of the High Court,
Johannesburg
DATE
JUDGMENT DELIVERED: 10 AUGUST 2021
Appearances
For
applicant
:
Advocate T Lipshitz
Instructed by:
Rothbart Inc
[1]
(19577/09)[2016]
ZAGPHC 489 (24 June 2016) para 25
[2]
Minister
of Police v Manyoni (41499/2018)[2021] ZAGPJHC 84 (24 June 2021)
paras 2 – 4; Fair-Trade Independent Tobacco Association
v
President of the Republic of South Africa & Another
(21688/2020)[2020] ZAGPPHC 311 (24 July 2020) paras 4 - 6
[3]
Dexgroup
(Pty) Limited v Trustco Group International (Pty) Ltd & Others
2013 (6) SA 520
SCA (para 24)