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[2021] ZAGPPHC 423
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Agricultural Research Council v NAP Designs (Pty) Ltd and Others (6387/2019) [2021] ZAGPPHC 423 (28 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS
JUDGES: NO
(3)
REVISED
Case
No: 6387/2019
In
the matter between:
AGRICULTURAL
RESEARCH
COUNCIL
APPLICANT
(In
the application for leave to appeal)
and
NAP
DESIGNS (PTY)
LTD
FIRST RESPONDENT
(In
the application for leave to appeal)
HILTON
MACDONALD N.O.
SECOND
RESPONDENT
ASSOCIATION OF
ARBITRATORS (SA) NPC
THIRD RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
BASSON
J
Introduction
[1]
This is an application for leave to appeal
against this court’s judgment dated 26 April 2021. The
applicant’s
grounds for leave to appeal are set out in detail
in its notice of application for leave to appeal and need not be
restated here.
[2]
In this application the applicant is
submitting that this court erred in not reviewing and setting aside
the second respondent’s
arbitration award on the grounds relied
upon by the applicant in its founding affidavit. The arguments
advanced during the hearing
are largely repeated in argument in
support of this application. I do not intend repeating the arguments
advanced in support of
this application for leave to appeal. I have
considered all of the grounds as well as the submissions in support
thereof. Suffice
to state that the argument is repeated that the
alternative claim was not pleaded and no evidence was led on behalf
of the first
respondent in respect thereof. It was also again
submitted that the applicant was not granted a hearing on whether an
order should
be granted based on the quantity surveyor’s draft
final account.
Test
for leave to appeal
[3]
The
merits of the application for leave to appeal must be considered
against the background of the test for leave to appeal. It
is now
trite that section 17(1)(a)(i) of the Superior Courts Act
[1]
have raised the threshold for grating leave to appeal. Bertelsmann, J
in
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others
[2]
explains:
"[6]
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."
[4]
The
Supreme Court of Appeal in
S v
Smith
[3]
also
had occasion
to consider what constituted reasonable prospects of success in terms
of section 17(1)(a)(i):
"[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law,
that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. 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 words,
be a sound, rational
basis for the conclusion that there are prospects of success on
appeal."
[5]
There must therefore
exist more than just a mere possibility that another court will, not
might, find differently on both facts
and law.
Merits
[6]
The applicant applied to set aside the
arbitrator’s award on the grounds as set out in section 33 of
the Arbitration Act.
At the commencement of the proceedings, the
applicant abandoned the grounds of review requiring proof of
mala
fides
on the part of the arbitrator. The
court, even though the applicant now argues otherwise, did consider
the other grounds of review
(except for the ground provided for in
section 33(a) of the Arbitration Act since the applicant has
abandoned reliance on this
ground).
[7]
I have once again considered the
submissions advanced on behalf of the applicant during the initial
hearing of the application together
with the submissions as set out
in the heads of argument in support of the application for leave to
appeal.
I am not
persuaded that another court will come to a different conclusion in
regard to the fact that findings made by this court
more in
particular (but not limited to) the finding that the entitlement to
payment for works performed was properly before the
arbitrator and
the fact that the arbitrator had wide powers to decide the issues
placed before it, including the issue about the
respondent’s
entitlement to payment in terms of the contract. I am also not
persuaded that another court will come to a different
conclusion
regarding the finding that the applicant had sufficient opportunity
to address the findings made by the quantity surveyor
in its final
account. I have lastly also taken into account the fact that a court
will only set aside an arbitrator’s award
on very limited
grounds and as set out in section 33 of the Arbitration Act.
[8]
The application for leave to appeal therefore has no prospects of
success. I should
also point out that I have also considered that
there are no conflicting judgments under consideration as
contemplated by section
17(1)(a)(ii) of the Superior Courts Act and
the fact that the applicant does not rely on “
some other
compelling reason”
why the appeal should be heard.
Order
[9]
The following order is made:
The application for
leave to appeal is dismissed with costs.
AC
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
(electronically
generated therefore unsigned)
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 28 June 2021.
APPEARANCES
For
the Applicant
in
the application for leave to
appeal:
KENNEDY TSATSWANE SC
Instructed
by:
GILDENHUYS MALATJI INC
For
the Respondent
in
the application for leave to appeal:
ADV LF LAUGHLAND
Instructed
by:
MDA CONSULTANTS
Date
of
judgment:
28
June 2021
[1]
Act 10 of 2013.
[2]
2014 JDR 2325 (LCC).
[3]
2012
(1) SACR 567
(SCA).