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[2018] ZAKZDHC 46
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Assmang Limited v Holden (6488/2012) [2018] ZAKZDHC 46 (18 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU–NATAL
DIVISION, PIETERMARITZBURG
HELD
AT DURBAN
CASE
NO: 6488/2012
18
April 2018
In
the matter between:
ASSMANG
LIMITED
APPLICANT
and
LINDA
HOLDEN
RESPONDENT
JUDGMENT IN THE
APPLICATION FOR LEAVE TO APPEAL
Henriques
J:
[1]
This is an application for leave to appeal by the applicant to the
Supreme Court of Appeal, alternatively the Full Bench of
the
KwaZulu-Natal High Court Pietermaritzburg against the whole of the
judgment and orders delivered on 8 February 2018.
I will refer
to the parties as they appear in the application for leave to appeal.
[2]
The grounds on which the applicant seeks leave to appeal are set out
in full at paragraphs 1 to 5 of the application for leave
to appeal.
The application for leave to appeal is opposed by the respondent.
The applicant submits that based on the
submissions contained in
paragraphs 1 to 5 aforementioned, there is a reasonable prospect that
another court would come to a different
decision and it is on this
basis that leave to appeal out to be granted.
[3]
In essence the applicant submits that the court erred in dismissing
the special pleas of jurisdiction and prescription as envisaged
in s
17(1)(a)(i) and (ii) of the Superior Courts Act.
Legal
Position
[4]
Applications for leave to appeal are governed by ss 16 and 17 of the
Superior Courts Act. Section 17 reads as follows:
‘
Section 17(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;
(
b
) the decision sought on
appeal does not fall within the ambit of section 16(2)(
a
); and
(
c
) where the decision sought
to be appealed does not dispose of all the issues in the case, the
appeal would lead to a just and prompt
resolution of the real issues
between the parties.’
[5]
The applicant in essence submits that because there is no South
African authority on this point apart from the provision in
Mhlango
which it submits is distinguishable, this matter ought to enjoy the
attention of the Supreme Court of Appeal. However at
the
hearing of the matter I raised this with Mr Bothma whether the full
court of this division could deal with the matter and he
indicated
that it could. What is meant by reasonable prospects of success
within s 17(a)(i) of the Superior Court Act has
always been defined
to mean that there is a reasonable possibility of another court
coming to a different decision.
[6]
However with the enactment of the section, the test has obtained
statutory force, and a far more stringent test is envisaged.
In
Mout Chevaux Trust (IT 2012/28) v Tina Goosen
LCC 14R/2014 dated 3 November 2014 the Land
Claims Court held albeit, obiter, that the wording of the subsection
raised the bar
of the test that now has to be applied to the
application for leave to appeal. In
Notshokuvu
v S
at para [2] it was held that an appellant
has a high and stringent threshold in terms of the test.
[7]
Mr Rall referred to the decision of the full court in
Acting
National Director of Public Prosecutions and others v Democratic
Alliance NR: Democratic Alliances Acting National Direction
of Public
Prosecutions and others
(19577/09) [2016] OGPPHC489 (24 June
2016). Ledwaba DJP writing for the full court considered the
test as envisaged in s 17
of the Superior Court Act. At para 25
of the judgment he dealt with the test set out in the
Mout Chevaux
Trust
where Bertelsmann J held the following:
‘
It is clear that the threshold
for granting leave to appeal against the 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 Cronwright
& other
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.’
[8]
Having considered the submissions of the applicant and the
respondent, I am of the view that in relation to the order dismissing
the special plea of jurisdiction no other court would come to a
different conclusion. In relation to the second order
dismissing
the special plea of prescription, I am of the view that
there is a reasonable possibility that another court could come to a
different
conclusion. It is for this reason that I propose
granting leave to appeal against that order only and directing that
the
appeal serve before the full court of this division and that the
costs of the application for leave to appeal in this regard be
costs
in the appeal.
[9]
In the result the orders I issue are the following:
1. The application for leave to appeal
paragraph 1 of the order dated 8 February 2018 is dismissed with
costs.
2. The application for leave to appeal
the second order dated 8 February 2018 being the special plea of
prescription is granted
to the Full Bench of this division.
3. Costs of the application for leave
to appeal this order (para 2) will be costs in the appeal.