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[2018] ZAKZPHC 78
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Savoi and Others v National Prosecuting Authority and Another (5867/2013) [2018] ZAKZPHC 78 (11 September 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO. 5867/2013
In
the matter between:
GASTON
SAVOI
FIRST APPLICANT
INTAKA
HOLDINGS (PTY) LTD
SECOND
APPLICANT
FERNANDO
PRADERI
THIRD APPLICANT
and
THE
NATIONAL PROSECUTING AUTHORITY
FIRST RESPONDENT
THE
SOUTH AFRICAN POLICE SERVICE
SECOND RESPONDENT
ORDER
The
application for leave to appeal is dismissed with costs.
JUDGMENT
Delivered
on: 11 September 2018
Mnguni
J
[1]
The applicants in this matter seek leave to appeal to the full court
of this division
against the whole of my judgment and order handed
down on 23 February 2018 on various grounds enumerated in the notice
of application
for leave to appeal filed on 15 March 2018 in which
they contend that I have either erred or misdirected myself in the
judgment
of the matter. I have been urged by the applicants’
counsel to find that the applicants would have reasonable prospects
of
success and that another court may reasonably come to a different
conclusion.
[2]
Failing that, I have been urged that in terms of s 17 (1) (a) (i) and
(ii) of the
Superior Courts Act
[1]
there are further compelling reasons why leave to appeal should be
granted in that the judgment sets up an opposition between its
refusal to order disclosure and the orders of disclosure that had
been granted by Henriques J and Vahed J in two other related
matters.
[3]
Dealing first with the matter that was before Henriques J the record
will demonstrate
that two applications were before her, namely,
applications in terms of Uniform rules 30 and 35 (12). The
application which was
before me was in terms of rule 35 (11). Coming
to the matter that served before Vahed J, the issues raised in
relation thereto
were pertinently dealt with in my judgment.
[4]
In the course of argument the applicants’ counsel referred to
the following
three cases:
Bridon
International GMBH v International Trade Administration Commission &
others,
[2]
Helen Suzman Foundation
v Judicial Service Commission
,
[3]
and
Siyakhuphuka
Investment Holdings (Pty) Ltd v Ports Regulator of South Africa
Transnet SOC & others.
[4]
On the strength of those cases counsel submitted that I should grant
leave because my judgment seems to be at odds with what was
decided
in those cases. It will only take a moment’s reflection to
understand how misplaced that argument is. It is plain
from a reading
of those three cases that they deal with specified documents/reports
in a civil matter. This application concerns
documents in permanent
stay proceedings.
[5]
I have deliberately captured the grounds on which the permanent stay
application is
anchored. It is common cause that by and large all
grounds relate to the abuse of process. In para 58 of my judgment I
isolated
the insurmountable hurdle which the applicants face in that
regard. The presiding officer is best placed to rule on the evidence
in accordance with recognised procedures and applicable principles of
law.
[6]
In so far as a reasonable prospect of success and whether another
court may reasonably
come to a different conclusion are concerned,
the submissions amounted to a repeat of what was argued before me and
which I endeavoured
to deal with to the best of my ability in my
judgment of 23 February 2018.
[7]
Having carefully reflected on each ground I remain unpersuaded that
there is any reasonable
prospect of another court coming to a
different conclusion on the facts and circumstances of this case. I
am also unable to find
any compelling reasons why leave to appeal
should be granted to the applicants.
[8]
If I am wrong in that regard, then the applicants have a remedy of
applying to the
President of the Supreme Court of Appeal for leave.
It follows from what I have set out briefly above that I am not
disposed to
granting leave to appeal.
[9]
With regard to the question of costs, I note that the applicants have
not complained
that I have failed to exercise my discretion
judicially.
Order
[10]
In the circumstances the following order shall issue:
The
application for leave to appeal is dismissed with costs.
Mnguni J
Appearances
Heard:
06 September 2018
Delivered:
11 September 2018
For
the Applicant:
Mr G. MARCUS SC
Assisted
By:
Mr M. Du PLESSIS
INSTRUCTED
BY:
Edward Nathan Sonnenbergs Inc.
c/o Nicholson & Hainsworth
Attorneys.
REF.:
(W Van der Colff/0292511) / (Brett Nicholson/BNL2328)
TEL.:
033-343 22 21
For
the Respondent:
ADV. U.R.D MANSINGH
INSTRUCTED
BY: STATE
ATTORNEY, KZN
c/o CAJEE SETSUBI CHETTY
REF:
(Mr Patrick Kevan/cet/119/0004/2013/S/P13)
TEL:
033-345 67 19
[1]
10 of 2013.
[2]
Bridon International
GMBH v International Trade Administration Commission & others
2013 (3) SA 197
;
[2012] 4 ALL SA 121
(SCA); (538/2011)
[2012] ZASCA 82
(30 May 2012).
[3]
Helen Suzman
Foundation v Judicial Service Commission
2018 (4) SA 1
;
2018 (7) BCLR 763
(CC); (CCT289/16)
[2018] ZACC 8
(24
April 2018).
[4]
Siyakhuphuka
Investment Holdings (Pty) Ltd v Ports Regulator of South Africa
Transnet SOC & others
(5520/2016) [2018] ZAKZDHC 19 (21 May 2008).