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[2019] ZAGPPHC 166
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Good Future Trading & Projects 264 v Scooters Pizza (Pty) Ltd (60085/2014) [2019] ZAGPPHC 166 (31 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
CASE NO: 60085/2014
31/5/2019
In
the matter between:
GOOD
FUTURE TRADING & PROJECTS 264
PLAINTIFF/RESPONDENT
and
SCOOTERS PIZZA (PTY)
LTD
DEFENDANT/APPLICANT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
THOBANE
AJ,
[1]
The applicant seeks leave to appeal to
the full bench of this division against the whole judgment and order
that this court handed
down on 16 February 2018. The applicant
contends that the appeal would have reasonable prospects of success.
[2]
Section 17
of the
Superior Courts Act 10
of 2013
states that;
"(1) 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
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;"
It is my understanding that this
application for leave to appeal is premised on the contention that
the appeal would have reasonable
prospects of success and not that
there is some other compelling reason why the appeal should be heard.
[3]
The notice of application for leave to
appeal sets out in detail the grounds upon which the application is
premised. I will not
repeat them. The nub of the application though
is that this court should have found differently as set out in the
notice. In particular,
it is argued that the court should have found
that the parties to the franchise agreement are bound by its terms.
Further, that
if the court had kept the parties to the terms of the
franchise agreement it would have arrived at the conclusion that the
terms
of the agreement excluded the entitlement of the plaintiff to
rely on pre-contractual representations that may have been made,
unless made fraudulently.
[4]
The applicant points out, with
inter
alia
reference to the evidence of Mr
Botha who testified on behalf of the plaintiff, that no undertakings
about the profitability of
the business were made to him and that the
figures given to him were mere projections.
[5]
It is submitted that the court should
have found that it was improbable that the defendant had perpetrated
fraud in that there was
always a rider in the documents signed by the
parties that in so far as the profitability of the franchise or its
income stream
is concerned, it could not be held liable.
[6]
Lastly, that the plaintiff was required
to prove that fraudulent misrepresentation was made prior to entering
into the agreement,
that the plaintiff relied on such
misrepresentation to its detriment. The plaintiff, it is argued,
failed to discharge the onus
resting on it.
[7]
In opposing the application counsel for
the respondent submitted that the applicant was attacking the court's
factual findings.
He urged the court to dismiss the application with
costs. I hasten to add that I did not understand the submissions made
by applicant's
counsel to be aimed at the factual findings by this
court.
[8]
Prior to the
Superior Courts Act, the
test to be satisfied in an application for leave to appeal was
whether there are reasonable prospects that another Court may come
to
a different conclusion. As has been observed in recent cases,
section
17(1)
has raised the test. The oft quoted dicta is that of
Bertelsmann J, in
The Mont Chevaux
Trust v Tina Goosen
&
18
Others 2014 JDR 2325 (LCC)
at
para [6) which reads 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 Cornwright
&
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."
[9]
In S
v
Smith
2012 (1) SACR 567
(SCA)
para
7 Plasket AJA put it thus:
"[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."
[10]
The grounds of appeal set out in the notice of application for leave
to appeal and argued before
me were in my view dealt with in my
judgment. Having considered argument I am of the view that there are
reasonable prospects of
success on appeal.
[11]
In the result, I make the
following order;
1.
Leave is granted to appeal to the
full bench of this division;
2.
The costs of the application are
to be costs in the appeal.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT,
PRETORIA