Dept of Transport Roads & Public Works of the Northern Cape & others v MEC of the Northern Cape for Transport, Roads & Public Works & others (380/2012) [2021] ZANCHC 17 (7 May 2021)

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[2021] ZANCHC 17
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Dept of Transport Roads & Public Works of the Northern Cape & others v MEC of the Northern Cape for Transport, Roads & Public Works & others (380/2012) [2021] ZANCHC 17 (7 May 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE
DIVISION,
KIMBERLEY
Case
No: 380/2012
Date
Heard: 15/04/2021
Date
Delivered: 07/05/2021
In
the
matter
between:
THE
DEPARTMENT OF TRANSPORT ROADS &
PUBLIC
WORKS OF THE NORTHERN CAPE
1st Applicant/Defendant
THE
PREMIER
OF
THE NORTHERN
CAPE
2nd Applicant/Defendant
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE
NORTHERN
CAPE
FOR
TRANSPORT,
ROADS
& PUBLIC
WORKS
3rd
Applicant/Defendant
and
FRANCIS
OBAKENG LONDON
1st Respondent/Plaintiff
MOTSAME
PETRUS RANTHO
2nd Respondent/Plaintiff
MALEBOGO
LOUIS MOKWENA
3rd Respondent/Plaintiff
NTHABISENG
CONSTANCE
KEMANE
4th
Respondent/Plaintiff
JUDGMENT:
APPLICATION
FOR
LEAVE
TO
APPEAL
Mamosebo
J
[1]
This is an application for leave to
appeal to the Supreme Court of
Appeal,
alternatively, to the Full Bench of this Division, against my
judgment handed down on 05 February 2021
in which the
application
was dismissed with costs. The
application is opposed.
[2]
It
is
trite
that since the coming into operation of the Superior Courts Act,
[1]
the test for applications for leave to appeal is governed
by
section
17,
which
stipulates:
"17(1)
Leave to appeal may only be given where the judge or judges
concerned
are of the opinion
that —
(a)
The
appeal would have a reasonable prospect of success;
or
There
is s
ome other compelling reason
why the appeal should be heard, including conflicting judgments on a
matter under consideration;
(b)
The decision sought on appeal does not
fall within the ambit of
section
16(2)(a);
and
(c)
...
”
[3]
The
practical effect of section 17(1)(a) is that the threshold for
determining whether to grant leave to appeal on the basis that
the
appeal would have a reasonable prospect of success is higher and more
stringent. See
Notshokovu
v
S
[2]
.
Our courts have already interpreted the phrase “won/c/”, found in
section 17(1)(a)(i) of the Act, as indicative of some form
of
certainty or realistic chance of success. See
The
Mont Chevaux Trust v Tina Goosen & 18 Others
[3]
and
NEC
for Health, Eastern Cape v Nkhitha and Another
[4]
,
to
name
a
few.
[4]
Mr
Rautenbach SC, for the applicant, argued that there is no certainty
in the said test because there is nothing that imputes that
the bar
is set higher by the substitution of the word “could” with
“would”.
No
supporting
authority
for
this contention
is
proffered
by
counsel. Shongwe JA, writing for
the
unanimous
court
in
Notshokovu
[5]
at
para
2
said:
“
An
appellant, on the other hand, faces a higher and stringent threshold,
in terms of the Act compared to the provisions of the repealed
Supreme
Court
Act
59
of
1
959.
See
Van
Wyk
v
5,
Gafefa
v
S f2014]
ZASCA
152;
2015
(1) SACR
584
(SCA)
para
14.”
[5]
It is incomprehensible therefore that
counsel would still persist that the threshold remains unaltered in
the face of such overwhelming
authority by the Supreme Court of
Appeal that binds this Court. The
distinction is founded on the basis that
it is not a mere possibility but there must be supporting facts that
another court will differ
with the outcome of the trial court. The
submission in this regard is without
merit
and
stands
to
fail.
[6]
The crisp issue in this application
relates to whether a successful party granted leave to amend its
pleadings by the Court must give
the
other
party
notice
in
terms
of
Rule
28(1)
of
the
Uniform
Rules
of
Court
or
not.
[7]
The submission by Mr Rautenbach is that
notice must be given to the other party in order to afford them the
right to be heard
(audi alteram
partem)
to determine if the
amendment is objectionable or excipiable. In countering this
submission, Mr Segal, for the respondents, contended
that Rule 28(1)
does not stand in isolation. According to Mr Segal the trial court
interpreted Rule 28(6) correctly where it
made
the
following
enunciation:
“
Unless
the
court otherwise
directs,
an amendment
authorised
by
an order of the court may not be effected later tñ,an 10 days after
such authorisation.“
In
this instance, Vuma AJ had afforded the parties 20 days to effect the
amendment, and following an appeal to the Supreme Court of
Appeal,
the period was extended with effect from the date of the SCA
order.
[8]
Should the applicants deem that they
have been adversely affected by the amendment they still have
recourse, as provided by Rule 28(8),
within 15 days after
the amendment
has been
effected, to file any consequential
adjustment to the documents or pursue steps contemplated under Rules
18, 23 and 30. Rule 28(7)
entitles the respondents, as the parties
entitled to amend, to serve the amended
pages on the applicants because the
amendment has already been authorised
by
Vuma
AJ and
the SCA.
[9]
There is therefore no substance in the
contention that the applicants'
right
to the
audi alteram partem rule
has
been taken away. This application is also not novel nor are there any
compelling reasons why the appeal should be heard
in terms of s 17(1)(a)(ii)
by the SCA or the Full Bench.
Further, there are no conflicting
judgments
in
the
matter
under
consideration.
[10]
In the premises, I am satisfied that
there are no reasonable prospects of a successful appeal. The
application for leave to appeal
stands
to
fail.
[11]
On the question of costs. There is no
reason why costs should not follow the result.
[12]
The following order is made:
The
application for leave to appeal is dismissed with costs.
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
Counsel
for the Applicants:
Adv.
J.G.
Rautenbach
SC
Instructed
by: Mjila
and
Partners
Incorporated
Counsel
for the Respondents:        Adv.
N. Segal
Instructed
by:
Cranko Karp & Associates
c/o
Adrian B Horwitz & Associates
[1]
Act 10 of 2012
[2]
[2016]
ZASCA 112
(7 September 2016) at para 2
[3]
2014
JDR 2325 (LCC) at para 6
[4]
[2016]
ZASCA 176
(25 November 2016) at paras 16-17
[5]
Footnote
2
above