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[2018] ZAECMHC 76
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Mdi v Mdledle and Another (5100/18) [2018] ZAECMHC 76 (22 November 2018)
REPUBLIC OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION MTHATHA
CASE NO. 5100/18
In
the matter between:
BLANCHE
NOMATHEMBA MDI
Applicant
and
MONICA
LUMKA MDLEDLE
First Respondent
THE
DEPUTY SHERIFF, CALA
Second Respondent
JUDGMENT
NOTSHE
AJ
:
[1]
This is an application for leave to appeal the
judgment and order
that I made against the applicant.
[2]
The issue of the application for leave to appeal
is regulated by the
provisions of section 17(1) of the Superior Courts Act, 10 of 2013
("
the Act
"). The said provision reads 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 judgments on the matter under consideration
"
[3]
The first question that has arisen is whether the
provisions of
s17(1)(a) of the Act have changed the test for granting of leave to
appeal. The common test applicable for the grant
of leave to appeal
is whether there is a reasonable prospect that another court may come
to a different conclusion.
[4]
In
Mont
Chevaux Trust (IT 2012/2008) v Tina Goosen and Others
,
[1]
the Land Claims Court held that the wording of this subsection raised
the bar of the test that now has to be applied to the merits
of the
proposed appeal before leave should be granted. Bertelsmann J is
reported to have said the following:
"
It is clear that
the threshold for granting leave to appeal against a judgment of the
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 and Others
1985 (2) SA 342
(T) at 342H. 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.
"
[5]
This
judgment is referred to with approval in the matter of
Acting
National Director of Public Prosecutions and Others v DA In re: DA v
Acting National Director of Public Prosecutions and
Others
[2]
.
[6]
Erasmus:
Superior
Court Practice
[3]
in an apparent support of these judgments refers to an unreported
case of the Supreme Court of Appeal,
[4]
wherein
they say that the Supreme Court of Appeal held that an appellant
faces a high and stringent threshold in terms of the Act
compared to
the provisions of the repealed Supreme Court Act, 59 of 1959.
[7]
Subsequent
to the Land Claims Court and the Full Court judgments the Supreme
Court of Appeal,
[5]
dealt with
the issue of the application for leave to appeal. It stated
that an applicant for leave to appeal must convince
the Court on
proper grounds that there is a reasonable prospect of a realistic
chance of success on appeal. It further said that
a mere possibility
of success, an arguable case or one that is not hopeless is not
enough. There must be a sound, rational basis
to conclude that there
is a reasonable prospect of success on appeal. The Court referred to
its earlier judgment in
S
v Smith
.
[6]
[8]
The Supreme Court of Appeal did not say that the
bar has been raised
by the provisiona s17(1)(a) of the Act. Both the Land Claims Court
and the Full Court did not consider
the issue in dept.
[9]
Section 34 of the Constitution of the Republic
of South Africa
provides that everyone has the right to have any dispute that can be
resolved by the application of law decided
in a fair public hearing
before a court. In my view this includes a right of appeal to the
highest court of the land.
[10]
Any law
that seeks to limit that right must meet the stringent requirements
of section 36 of the Constitution.
[7]
Furthermore one of the presumptions of interpretation of statutes is
that “…
the
legislature does not alter the common law or statute law more than is
necessary. It cannot be inferred that an enactment intends
to alter
the law; alteration must be explicitly stated or no other conclusion
can be arrived at except that the legislature did
have that
intention.
”
[8]
It is further presumed that when construing a statute, the existing
law should not been altered unless the statute is clearly intended
to
alter the law.
[9]
[11]
Section 17(1)(a) of the Act should be construed in that fashion
as
well.
[12]
The
judgment of the Supreme Court of Appeal in the
Notshokovu
[10]
was
dealing with the provisions of s17(2)(f) of the Act and not
s17(1)(a). It is no authority that the provisions of s17(1)(a) raised
the bar in respect of the test for an application for leave to
appeal
.
[13]
In the circumstances, I am of the view that the law remains as it
was
prior to the promulgation of the Superior Courts Act, namely that an
applicant for leave to appeal must convince the Court,
on proper
grounds, that there is a reasonable prospect or realistic chance of
success on appeal.
[14]
The application for leave to appeal has a peculiar feature that
“permission” to appeal is sought from the very same judge
who was satisfied that the order that he/she made is a sound
and
correct one. Although the presiding officer was satisfied that the
order he/she made is a sound one, he/she is required to
stand back
and look at the order and reasons therefor and ask himself/herself
whether there is a reasonable prospect that another
court may come to
a different conclusion. This requires that, even if one is satisfied
that the order is valid in view of the reasons
he/she gave for it,
he/she must seriously consider whether there is a reasonable prospect
that another court may come to a different
conclusion.
[15]
In that
event a court should steer that fine course between a Scylla of
granting leave to appeal and the Charybdis of granting
leave to
appeal in cases where there are no reasonable prospects of success on
appeal and unduly burdening the appeal courts.
[11]
[16]
In this case the grounds for leave to appeal and even argument before
me do not satisfy me that there is a reasonable prospect of success
on appeal. It must be made clear that the order that
I made for
restoration of possession to the first respondent does
not affect the dispute between the parties as to
the beneficiaries of
the main estate. It is merely an order regarding possession.
[17]
In the circumstances, I am satisfied that there no is reasonable
prospect of success on appeal and the application for leave to appeal
is dismissed, with costs.
V
S NOTSHE
Acting
Judge of the High Court
Heard:
15 November 2018
Judgment
delivered:
22 November 2018
[1]
An unreported decision of the Land Claims Court under LCC 14R/2014,
dated 3 November 2014.
[2]
(19577/09) [2016] ZAGPPHC 489 (24 June 2016).
[3]
RS6-2018, A2-55.
[4]
Notshokovu v S (157/15)
[2016] ZASCA 112
(7 September 2016).
[5]
5MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015)
[2016] ZASCA 176
(25 November 2016).
[6]
2012 (1) SACR 567
(S CA) para [7].
[7]
7 It reads as follows:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including-
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any right entrenched
in the Bill
of Rights.”
[8]
Kellaway: Principles of Legal Interpretation (Butterworths) p.335.
[9]
Ibid 337.
[10]
Ibid.
[11]
7 Phakathi kwenyama nozipho.