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[2021] ZAGPJHC 433
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Dodson N.O. and Another v Quattro L Consortium (Pty) Ltd and Others (28472/2020) [2021] ZAGPJHC 433 (17 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 28472/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
17/9/21
In
the matter between: -
PETER
DODSON N.O.
(in
his capacity as trustee for the time being of
THE
GRIFFON RESIDENTS
TRUST)
First applicant
THE
BEST TRUST COMPANY (JHB) (PTY) LTD N.O.
(in
its capacity as trustee for the time being of
THE
GRIFFON RESIDENTS
TRUST)
Second applicant
and
QUATTRO
L CONSORTIUM (PTY) LTD
First respondent
GILHAR,
ADRIANA
BERTHEIL
Second respondent
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Third respondent
JUDGMENT
DELIVERED
:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e mail and publication
on CaseLines. The date
and time for hand-down is deemed to be 10h00 on 17 September 2021.
F.
BEZUIDENHOUT AJ:
INTRODUCTION
[1]
The
second respondent (“
Ms
Bertheil
”)
[1]
applied for leave to appeal (“
the
application for leave”)
against the whole of my judgment handed down on 26 July 2021.
[2]
The application was
not opposed.
PRINCIPLES GOVERNING
APPLICATIONS FOR LEAVE TO APPEAL
[3]
Before dealing with the grounds of appeal, it is necessary to have
regard to
the basic principles governing applications for leave to
appeal.
[4]
In terms of the provisions of
section 17(1)
of the
Superior
Courts Act, 2013
, leave to appeal will only be granted if the court
is 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 on appeal does not fall within the ambit of
section 16(2)(a)
; and
(c)
whether 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 issue between the parties.”
[5]
What
emerges from
section 17(1)
is that the threshold to grant a party
leave to appeal has been raised. It is now only granted in the
circumstances set out and
is deduced from the word “
only”
used in the section. In
Mont
Chevaux Trust v Tina Goosen and 18 Others
[2]
Bertelsman J held 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,
see Van Heerden v
Cronwright and Others
1985 (2) SA 342
(T) at 343H. The use of the
word ‘would’ in the new statute indicates a measure or
certainty that another court will
differ from the court whose
judgment is sought to be appealed against.”
[6]
It has been
repeatedly held in the analysis of the test that it involves
considerations as to whether “
there
is a
reasonable
prospect
that another court could come to a different conclusion
”
[3]
and not whether there is a
possibility
that another court could come to a different conclusion.
[7]
The test
therefore is whether there is a reasonable prospect that another
court could come to a different conclusion. In
Westinghouse
Brake and Equipment (Pty) Ltd v Builder Engineering (Pty) Ltd
[4]
the Appeal Court (as it then was) reiterated the general principle
that in order for an applicant for leave to appeal to succeed,
the
applicant must demonstrate that it has a reasonable prospect of
success on appeal. It was also stated that an appeal would
be allowed
where the matter is of great importance or where the matter is of
public importance whether the court is of the view
the decision might
affect other questions.
[8]
The
procedural and substantive importance of applying for leave to appeal
cannot be overstated. The Supreme Court of Appeal held
in
Dexgroup
(Pty) Ltd v Trustco Group
[5]
that: -
“
The need to
obtain leave to appeal is a valuable tool in ensuring that scarce
judicial resources are not spent on appeals that lack
merit. It
should, in this case, have been deployed by refusing leave to
appeal.”
[9]
It is against this legal backdrop that I consider the plaintiff’s
application
for leave.
SUBMISSIONS
ON GROUNDS OF APPEAL
[10]
Ms Bertheil filed a notice of application
for leave to appeal containing various grounds of appeal. Although I
have considered them
all, I do not intend to deal with any of the
grounds individually.
[11]
During the argument of the application for
leave to appeal which lasted for more than an hour, Ms Bertheil, in
many instances rehashed
the points of argument raised by her in the
main hearing.
[12]
Before the hearing, Ms Bertheil contacted
my registrar and requested that I accept additional documentation
that was not before
me when the main application was first argued. I
declined her request. Notwithstanding, Ms Bertheil uploaded the
documents onto
CaseLines and referred to them throughout the
application for leave. When I asked Ms Bertheil whether these
documents were included
in her answering papers filed in opposition
to the main application, she conceded that they were not, reason
being that she had
received bad advice and was told that the matter
would be referred to trial where she would be able to disclose
everything.
[13]
Ms Bertheil conceded when I asked her
again, as I had done during the main hearing, that she had not paid
any rentals since she
occupied the Applicant’s property. It was
also her version that the utilities that she did pay for initially,
was done under
duress.
[14]
Ms Bertheil for the first time during the
application for leave alleged that the offer to purchase was a
fraudulent document, yet,
she conceded in her answering affidavit and
also in the application for leave to appeal itself, that the sale
agreement was cancelled
by agreement.
[15]
It is clear that Ms Bertheil does not wish
to remain in the property but wishes to vacate on her own terms. She
submitted that she
required more time to make the necessary
arrangements to have her furniture and belongings packed and for her
return to Israel.
She maintained that she is of ill health, that she
can hardly walk without physiotherapy and that she is concerned that
if the
covid-19 vaccination is administered to her before she leaves
South Africa, it may have adverse effects.
DELIBERATION
[16]
When reading my judgment against the backdrop of the
application and oral submissions submitted by Ms Berhteil, I am of
the view
that it cannot confidently be argued by her that I committed
a misdirection on the facts. It is certainly not argued that I
committed
a misdirection on the law. In my analysis of the evidence I
found the version of Ms Bertheil improbable in some instances and
lacking
in others. I have dealt with them in detail and do not intend
to repeat them here.
[17]
In my view there is no
reasonable
prospect that another court could come to a different conclusion.
[18]
In the result, the application for leave to
appeal is dismissed.
F
BEZUIDENHOUT
ACTING
JUDGE OF
THE
HIGH COURT
Date
of hearing:
26
August 2021
Date
of judgment:
17
September 2021
APPEARANCES:
On
behalf of applicants:
No
opposition.
Mervyn
Taback Inc t/s Andersen
Sibusiso.mlangeni@za.andersen.com
On
behalf
second
respondent:
Appearance in
person.
adriana1st@icloud.com
[1]
In
my judgment I referred to Ms Bertheil’s married name,
“Gilhar”, but during the hearing of the application
for
leave, she indicated that she preferred her maiden name.
[2]
2014
JDR 2325 (LCC) paragraph [6].
[3]
Woolworths
Ltd v Matthews
1999 [3] BLLR 288 (LC).
[4]
1986
(2) SA 555 (A).
[5]
2013
(6) SA 520
(SCA) paragraph [24].