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[2021] ZAGPPHC 426
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Jabari and Others v Telkom Limited and Others (81163/17) [2021] ZAGPPHC 426 (23 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO: 81163/17
In the matter between:
MPHO JABARI
FIRST APPLICANT
CYRIL
BALOYI
SECOND APPLICANT
FRANK
MOGALE
THIRD APPLICANT
REABETSWE
NTSIE
FOURTH APPLICANT
GARETH
RITTLES
FIFTH APPLICANT
PAUL
SCOTT
SIXTH APPLICANT
MARIA
MAGDALENA PRETORIUS
SEVENTH APPLICANT
And
TELKOM LIMITED
FIRST RESPONDENT
WAYNE LARRY VINCENT LOUIS
SECOND RESPONDENT
COMBINE PRIVATE INVESTIGATORS
(PTY) LTD
THIRD RESPONDENT
IMVULA
SECURITY SERVICES (PTY) LTD
FOURTH RESPONDENT
SMADA
SECURITY, A DIVISION OF THE
SMADA GROUP (PTY) LTD
FIFTH RESPONDENT
This judgment is issued
by the Judge whose name is reflected herein and is submitted
electronically to the parties/their legal representatives
by email.
The judgment is further uploaded to the electronic file of this
matter on Caselines by the Judge or his/her secretary.
The date of
this judgment is deemed to be 23 June 2021.
APPLICATION FOR LEAVE TO APPEAL
COLLIS
J
INTRODUCTION
[1]
This is an application for leave to appeal against the judgment and
order I made on
29 January 2021. The full order of the court reads as
follows:
“In the
premises the following order is made:
1.1 The application is
dismissed with costs on the basis of an unreasonable delay both
in
instituting and prosecuting the application.
1.2 The respondents
are awarded costs on a party and party scale, including the
costs of
two counsel, where so employed.”
[2]
The application is premised on the grounds as listed in the
Application for Leave
to Appeal dated 26 March 2021. In essence, the
application is premised on two grounds. Firstly, that this court
erred in dismissing
the application without considering the merits of
the review, simply on the basis that the applicants delayed in
instituting the
review and secondly, that the applicants had brought
the application within the time period stipulated by section 7 of
PAJA.
[3]
Simultaneously with the application for leave to appeal, the
applicants also applied
for condonation for the late filing of the
notice of application for the leave to appeal. At the hearing,
condonation was first
applied for and subsequently granted by the
court.
LEGAL PRINCIPLES
[4]
Section 17 of the Superior Court’s Act provides as follows:
[1]
(1)
Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that-
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard, including conflicting
judgments
on the matter under consideration;
(b)
the
decision sought to appeal does not fall within the ambit of section
16(2)(a);
and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.
[5]
Section 16(2)(a)(i) provides:
‘16(2)(a)(i) When at
the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical
effect or result, the appeal
may be dismissed on this ground alone.’
[6]
As to the test to be applied by a court in considering an application
for leave to
appeal, Bertelsmann J in The Mont Chevaux Trust v Tina
Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the
following:
‘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, see
Van Heerden v Cronwright & 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 appealed against.’
[7]
‘In order to succeed, therefore, the appellant must convince
this Court on proper
grounds that he has prospects of success on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding.
More is required to be established than that
there is a mere possibility of success, that the case is arguable on
appeal or that
the case cannot be categorised as hopeless. There
must, in other word, be a sound, rational basis for the conclusion
that there
are prospects of success on appeal.’
[2]
[8]
With reference to the provisions of section 16(2)(a)(i), when then at
the hearing
of the appeal where a decision of the issues that are the
subject matter of the appeal, would have no practical effect or
result,
the appeal must be dismissed on this ground alone.
[9] A court in exercising
its discretion in terms of section 16(2)(a)(i), must therefore
first
ask whether the issues between the parties are moot. In this regard,
the decision of Qoboshiyane NO and Others v Avusa Publishing
Eastern
Cape (Pty) Ltd and Others
[3]
is instructive. In paragraph 5 of the said judgment, Wallis JA
distinguished between two classes of cases where a decision will
have
no practical effect or result:
‘There
are a number of cases where, notwithstanding the mootness of the
issue between the parties, to the litigation, the
court has dealt
with the merits of an appeal. With those cases must be contrasted a
number where the court has refused to deal
with the merits.
[4]
The broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose.’
[10]
‘A case is moot and therefore, not justiciable if it no longer
presents an existing or live controversy
which should exist if the
Court is to avoid giving advisory opinions on abstract propositions
of law.’
[5]
[11] In casu, and with reference to the
relief sought as per the Notice of Motion, the relief sought has
become moot for the following reasons:
11.1 In respect of prayers 1,2 and 3, Mr
Louis is no longer employed by the first respondent, and neither
does
the position in which the first applicant wishes to be appointed in,
any longer exists within the first respondent;
11.2 In respect of prayers 4 and 5, the
contracts entered into between the first, third, fourth and fifth
respondents have terminated due to the effluxion of time.
[12]
In further applying the reasoning employed in the
Qoboshiyane
decision, what then remains is whether there exists a discrete
legal issue of public importance that would affect similar matters
in
the future?
In casu
this question cannot be answered in the
affirmative as in the event that leave to appeal were to be granted
to the applicants and
an outcome in their favour ultimately made,
this result will give effect to a position with an ultimate unaltered
outcome to them.
[13]
In the circumstances and having carefully heard counsel I as a result
come to the conclusion that the
application cannot succeed.
ORDER
[14]
Consequently I make the following order:
14.1 The application for leave to appeal is dismissed with costs,
such costs to include the employment of two counsel.
C.J. COLLIS
JUDGE OF THE HIGH COURT
Appearances
Counsel for the
Applicant
: Adv. S. MOHAPI
Attorney for the
Applicant
: Blessed Mongwe Attorneys
Counsel for the
First Respondent : Adv. N. MAENETJE SC &
N.FERREIRA
Attorney for the
First Respondent : Adams & Adams
Date of Hearing
: 01 June 2021
Date of Judgment
: 23 June 2021
Judgment transmitted electronically.
[1]
Act 10 of 2013
[2]
S v Smith
2012 (1) SACR 567
(SCA) at para 7
[3]
2013 (3) SA 315
(SCA) and Legal Aid South Africa v Magidiwana and
Others
2015 (2) SA 568
at para 15 and 16
[4]
Port Elizabeth Municipality v Smit2002 (4) SA 241 (SCA) para 7
[5]
National Coalition for Gay & Lesbian Equality & Others v
Minister of Home Affairs & Others
2000 (2) SA 1
(CC