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[2019] ZAGPPHC 173
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J.E v C.E (Leave to Appeal) (42949/2013) [2019] ZAGPPHC 173 (21 May 2019)
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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 NUMBER: 42949/2013
21/5/2019
In
the matter between:
J[….]
E[….]
Applicant
(In
the application for leave to appeal)
(The
respondent in the application in terms of section 18
of
the Superior Courts Act)
and
C[….]
E[….]
Respondent
(In
the application for leave to appeal)
(The
applicant in the application in terms of section 18 of
the
Superior Courts Act.)
JUDGMENT:
IN THE APPLICATION FOR LEAVE TO
APPEAL
IN
THE APPLICATION IN TERMS OF SECTION 18 OF THE SUPERIOR
COURT
ACT
AC BASSON, J
[1]
This is an application for leave to
appeal against my judgment and order handed down on 27 July 2018. An
application in terms of
section 18(2) of the Superior Courts Act
[1]
("the Act") brought by the respondent was simultaneously
argued.
Application for leave to appeal
[2]
In brief the applicant relies on five
grounds for leave to appeal: (i) he firstly contended that this court
erred in finding that
the relief sought by the respondent, is not
final in effect; (ii) secondly, the applicant took issue with this
court's findings
in respect of the settlement agreement and more in
particular with this court's reliance on the
Comwezi
[2]
judgment ; (iii) thirdly it is
contended that the court erred in finding that in the prevailing
circumstances, the court has the
power to regulate the position of
the parties until final distribution; (iv) fourthly, the applicant
contended that the court erred
in finding that it was common cause
that the assets of the trust form part of the joint estate and that
the assets of the trust
amounted to approximately thirteen million
rand; and (v) lastly, it is argued that this court erred in directing
the applicant
to make certain payments and more in particular, in
directing the applicant to pay
mora
interest on the amounts concerned
from the two dates on which the settlement agreement (that was made
an order of court) initially
obliged the applicant to make. In this
regard it was submitted that the finding and order that the applicant
is liable for
mora
interest
on the two capital amounts is final and binding.
[3]
In deciding whether to grant leave to
appeal, this court has to take into account the provisions of section
17(1)(a)(i) of the Act.
Leave to appeal may only be granted where the
court is of the opinion that the appeal would have reasonable
prospects of success
in respect of its findings.
[4]
It is not necessary for purposes of this
application to discuss the merits of each of these grounds for leave
to appeal in detail.
Suffice to point out that I am persuaded, after
having considered the submissions on behalf of the applicant, that
the applicant
has reasonable prospects of success on appeal.
Order: Application for leave to
appeal
1.
The application for leave to
appeal is granted to the Full Court of this Division.
2.
Costs to be costs in the appeal.
Application
in terms of section 18(2) of the Act
[5]
The respondent (in this application)
refuses to pay the amounts that he has been ordered to pay pending
the outcome of the action
between the parties, on the basis that his
Notice of Intention to Appeal in terms of section 18(1) of the Act
suspends the order
issued.
[6]
The applicant (in this application)
filed an application in terms of section 18 of the Act in terms of
which she sought an order
that the orders granted by this court on 27
July 2018, are
interim
and
do not have final effect as intended by section 18(1) of the Act with
the result that the orders are not suspended by any application
for
leave to appeal or appeal proceedings. Alternatively, it was
submitted that if leave to appeal is refused, the court should
nonetheless order that the orders of 27 July 2018 will be operational
and executable pending the outcome of any further applications
that
the applicant may launch.
[7]
I have already granted leave to appeal,
inter alia ,
on
the basis that the applicant has reasonable prospects of success on
appeal in respect of this court's finding that the orders
are not
final.
[8]
The only issue thus remaining is whether
this court should grant an order in terms of prayer 2 of the Notice
of Motion that the
orders of 27 July 2018 will be operational and
executable pending the outcome of those appeal procedures.
[9]
To succeed with such application, the
applicant must show that there are exceptional circumstances. In
addition, the applicant must
prove on a balance of probabilities that
she has complied with the provisions of section 18(3) of the Act
which requires her to
prove on a balance of probabilities that she
will suffer irreparable harm if the court does not grant the order
and that the respondent
will not suffer irreparable harm if the court
grants the order: The Court
in Swart
&
Another
v Cash Crusaders Southern Africa (Pty) Ltd
[3]
explains:
"[4] ... Both judgments make
it clear that s 18 of the Act has introduced a new dimension to these
types of proceedings by
requiring first that the discretion may be
exercised only if the conditions precedent of "exceptional
circumstances",
and actual irreparable harm to one party, and no
harm to the other, are proven. It is now incumbent upon the applicant
seeking
leave to execute pending an appeal, to prove on a balance of
probabilities that it will suffer irreparable harm if leave to
execute
is not granted, and that the other party will not suffer
irreparable harm if the court so orders. Once these jurisdictional
facts
are established, the court may exercise its wide discretion to
grant leave to execute, or not to grant leave."
[10]
The applicant contends in her Founding Affidavit that this is "a
special and extraordinary
situation" and that she needs the
funds in order to be financially independent and that she needs the
money in order to exercise
her right to have her complaint (the main
action pending before the court) heard.
[11]
Although the applicant sets out in her affidavit why she needs the
money, she does not allege
that she will suffer irreparable harm if
the court does not grant her the order in terms of section 18 of the
Act, nor does she
allege that the respondent will not suffer
irreparable harm if the order is granted. This is a fatal omission
and the application
should therefore fail.
[4]
[12]
In the event the following order is made:
The
application in terms of section 18 of the Superior Courts Act is
dismissed with costs.
AC BASSON
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant: SD Wagener SC
Instructed
by: Clark
& Van Eck Attorneys
For
the applicant: JL van der Merwe SC
Instructed
by:
Coxwell Steyn Visser & Naude c/o Sanet De Lange
Inc.
[1]
Act 10 of 2013.
[2]
Comwezi Security Services (Pty) Ltd v Mowzer NO
2014 JDR 0610
(SCA).
[3]
2018 (6) SA 287 (GP).
[4]
The Court in
Swart ibid
came to a similar conclusion at para
[9]:
" A further submission going to the heart of the
matter, and the interpretation of the provisions s 18 (3) was the
following:
the Respondent did not in its
s.
18 (1)
application deal with the position of the Second Appellant at all.
The Second Appellant employed the First Appellant and
also opposed
the Respondent's main application. Both the Second Appellant and the
First Appellant brought an application for
leave to appeal against
the judgment of Kollapen J. Thus, the Respondent in seeking relief
in terms of s. 18 (1) was required
to make out
a
case of
absence of irreparable harm in regard to both the First Appellant
and the Second Appellant. The Respondent says nothing
in its
application in regard to the absence of irreparable harm to the
Second Appellant, and this was therefore
a
fatal omission to
the Respondent's application and on this basis alone, it ought to
have been dismissed with costs by Kollapen
J.