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[2019] ZAGPPHC 50
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Body Corporate Of Kingfisher Close v Sekgala (26737/17) [2019] ZAGPPHC 50 (6 March 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA,
GAUTENG LOCAL DIVISION,
PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 26737/17
6/3/2019
IN
THE MATTER BETWEEN
THE
BODY CORPORATE OF KINGFISHER CLOSE
APPLICANT
AND
RAMMUTLANA
BOELIE
SEKGALA
RESPONDENT
JUDGMENT
SENYATSI
AJ
[1]
The
issue for determination in this leave to appeal which came before me
on 13 December 2018 is whether the test required to be
paned by the
Applicant in terms of
section 17
(1) of the
Superior Courts Act, 10
of 2013
has been met.
[2]
Section
17
(1) of the
Superior Courts Act, no 10 of 2013
provides as follows:
"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
(b)
(ii) -there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under
consideration;"
[3]
The
test to be applied for in terms of
section 17(1)
of the Act is that
another court would come to a different conclusion.
[4]
The
Applicant has raised a number of grounds including
rules 31
(2) (b),
rule 42
(1) (a) and common law. The Applicant contends that the
rescission order ought not to have been granted.
[5]
In
Zweni v Mmister of Law and Order
1993
(1) SA 523
(A) at 5321-533A
the
Appellate Division, as it then was, ruled against the appealability
of an interim order. The court held that the test for the
interim
order is:-
(a)
the finality of the order:-
(b)
the definitive rights of the parties;
(c)
the effect of disposing of a substantial
position of the relief claimed.
[6]
In
Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service
1996 (3) SA 1(A)
,
the
court held that the test parameters applied in Zweni were not
exhausive.
[7]
The
Supreme Court of Appeal in
Philani-Ma-Africa
v Mailula
2010 (2) SA 573
(SCA),
held
that the interest of justice were paramount in deciding whether or
not interim orders were appealable with such case being
considered in
the light of own facts.
[8]
The
main consideration in deciding whether the interest of justice would
be served is whether the refusal of appeal would lead to
irreparable
harm to the Applicant.
[9]
In
De Vos v Cooper of Ferreira
1999 (4)
SA 1
290 (SCA) at 1297
A-D in
confirming that a rescission order does not have a final and
definitive effect, the court expressed itself as follows:
" So in bevel het immers
nie enige finale of beslissende uitwerking op die geskilpunte in die
hoofgending nie"
[10] In
the instant leave to appeal, the order sought to be appeal against
has not made a final determination
of the parties' dispute. The
Applicant's claim remains intact and what has changed is simply that
the judgment obtained by default
against the Respondent has been
rescinded.
[11]
The rights of the Applicant remains
unaffected by the rescission and the trial court will make a
determination once the parties
have ventilated their disputes.
[12]
Consequently, the applicant's has failed
to discharge the onus that another court will come to a different
conclusion.
ORDER
[13]
The following order is made:
(a)
The application for leave to
appeal is dismissed with costs.
M.L. SENYATSI
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Appearances:
Date
of hearing
: 13 December 2018
Date of Judgment
: 06 March 2019
For
the Applicant
:Rorich Wolmarans and
Luderitz Inc, Pretoria
Instructed
by
: Adv N.G Louw
For
first Respondent
: Mr B Sekgala
Instructed
by
: In Person