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[2019] ZAGPPHC 365
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Financial Sector Conduct Authority v Tjiroze (3745/2018) [2019] ZAGPPHC 365 (8 August 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OFSOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES
Case No: 3745/2018
8/8/2019
In
the Rule 28(4) application between:
FINANCIAL
SECTOR CONDUCT AUTHORITY
Applicant
And
HITJEVI
OBAFEMI
TJIROZE
Respondent
And
in the Rule 30 application between:
HITJEVI
OBAFEMI
TJIROZE
Applicant
And
FINANCIAL
SECTOR CONDUCT AUTHORITY
Respondent
In
re the main application between:
HITJEVI
OBAFEMI TJIROZE
Applicant
And
APPEAL
BOARD OF THE
FINANCIAL
SERVICES
BOARD
First Respondent
FINANCIAL SECTOR CONDUCT
AUTHORITY
Second Respondent
JUDGEMENT
SENYATSI
AJ
[1]. This
is an application for leave to appeal against the order I made on 15
February 2019.
[2]. At the
hearing of the application the Applicant Mr. Tjiroze, was absent in
Court before
the matter was called I was informed in chambers by my
clerk Ms Fridah Mafokwane that she made contact with the Applicant on
2
March 2019 telephonically informed him that the application for
leave to appeal would be heard on 06 March 2019 at 09h00. The Court
was also informed that an email was sent to all parties on 5 March
201- 9 confirming that the matter would be heard on 06 March
2019 at
09h00.
[3]. On the
6 March 2019, the Court was informed that by the clerk, Ms Mafokwane
that a text
message was sent to Mr Tjiroze advising him on what the
court number was. where the matter was going to be argued. This was
done
before 09h00 when Mr. Tjiroze did not show up.
[4]. The
matter was eventually heard at 09h45. Mr Motepe, counsel for the
Second Respondent
in the main application confirmed that the email
was sent to all parties on 5 March 2019, clearly detailing the time
hearing for
leave to appeal. After the court had adjourned Ms
Mafokwane informed in the chambers that the applicant sent her a text
message
that he can only be in Court at 14h00. This was unhelpful as
the Court had reserved Judgement and adjourned.
[5]. In his
application for leave to appeal, the applicant raised various of
grounds which.
for the purpose of this judgement, I will not repeat.
The file in this matter could not be traced and despite having a
draft judgment
done on 6 March 2019, the judgment never reached the
parties. This is regrettable.
[6]. The
gist of the order appealed against is that the court ordered in
granting leave to amend
the pleading by correcting the typographical
error on citation of the Second Respondent. Other grounds raised by
the Applicant
manifesting amount to re argument on the finalized
application.
[7]. In
order to proceed with leave to appeal the applicant must meet the
standard set out in
Section 17{1) of the Superior Court Act no: 10 of
2013 which 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
(ii) there is
some
other compelling reason why the
appeal should be heard, including conflicting judgements
on
the matter under consideration”.
(b).
The
decision sought on appeal does not fall within the ambit of section
16(2) (9) and
(c).
Where
the decision sought to be appealed does not depose all the issues in
the case, the appeal would lead to
a
just and prompt resolution of the
real issues between the parties.”
[8]. On
proper reading of the grounds of appeal it is evident that leave is
brought in terms
of section 17(1) (a) (i).
[9]. The
issue for the determination is whether or not the appeal would have
prospect of success.
[10]. The law is settled on
the application in term of section 17(1) (9)(i) of the Superior
Courts Act ("
the Act). The threshold for granting leave to
appeal against the judgement of this Court had been raised. In the
present section,
the use of the word "would" indicates a
measure of restraint that another court would differ from the court
should judgment
is sought to be appealed against
(See Van
Heerden v Cronwright & others
1985 (2) SA 342
m at
343H and
Mont Chevaux Trurt V Tina Goosen & Others
LCC
14Rl2014 dated 3 November 2014)
[11]. The order appealed
against is not appealable as it is not a final judgement that
disposes of the parties
real issues. The order was a simple leave to
amend.
[12]. One of the grounds
raised was that this Court was not entitled to correct or revise the
judgement. The general
rule is that once the court has pronounced on
a judgement it has no authority to correct or after such judgement.
In exception
to this rule is that the court is permitted to correct
clerical errors in its judgement or order, costs or interest on the
judgement
which the court far looked or inadvertency admitted to
grant.
(See
West Rand Estate Ltd v New Zealand Insurance
Co Ltd1926 AD 173 Wessels
&
Co v De Beer
1919 AD 172
at 174; Randfontein Estates v Robinson
1921 AD 515
at
520).
ln substance of the Judgement was not revised and
therefore this ground should fail.
[13]. The appeal against the
order will have not practical effect on the main application as this
application
still needs to be finalised by the parties.
[14]. Having regard to the
law and the grounds raised for leave to appeal, I am of the view that
the Applicant
has not succeeded in convincing this court that another
court would differ with the order appealed against. As a consequence,
the
leave to appeal application would fail.
ORDER:
[15]. The following order is
made;
(a). The
application for leave to appeal against the order made on 15 February
2019 is dismissed with
cost
M.L.
SENYATSI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
PRETORIA
Appearances:
Date
of hearing
:06 March 2019
Date
of Judgement
:08 August 2019
For
the Applicant
: Mr. Tjiroze (Absent from Court)
For
the Respondent
: Advocate Motepe
Instructed
by
: Mathie Jooma Sabdia lnc, Pretoria