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[2017] ZAGPPHC 383
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BWM Financial Services (SA) (Pty) Ltd v Finlay and Others (55858/10, 55860/10, 56219/10) [2017] ZAGPPHC 383 (31 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 55858/10
55860/10
56219/10
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
DATE:
31/3/2017
In
the matter between:
BMW
FINANCIAL SERVICES (SA) (PTY)
LTD
APPLICANT
and
FINLAY,
SEAN ALISTER
1
st
RESPONDENT
TABATA,DUMISANI
DUMEKHAYA 2
nd
RESPONDENT
PASCOE.JOHN
LEVALLON 3
rd
RESPONDENT
TWO
SHIPS TRADING 148 (PTY)
LTD 4
th
RESPONDENT
AMABUBESI
MOTOR TRADING GROUP (PTY) LTD 5
th
RESPONDENT
Coram:
HUGHES J
JUDGMENT
HUGHESJ
[1]
This is an application for leave to appeal against my judgment
and order of 24 February 2017 wherein I upheld the second
respondent's
defence of estoppel with costs.
[2]
The section which deals with circumstances in which leave to
appeal may be granted is section 17 (1) of the Superior Courts Act 10
of 2013 (the
Superior Courts Act). What
specifically relevant in this
case, is
section 17
(1) (a). For easy reference I set out
section 17
(1) in its entirety below:
"(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."
[My emphasis]
[3]
The test which was applied previously in applications of this
nature was whether there were reasonable prospects that another court
may come to a different conclusion. See
Commissioner
of
Inland
Revenue
v
Tuck
1989
(4)
SA 888
(T) at 8908.
What
emerges from
section 17
(1) is that the threshold to grant a party
leave to appeal has been raised. It is now only granted in the
circumstances set out
and is deduced from the words
'only'
used
in the said section. See
The
Mont
Chevaux
Trust
v
Tina
Goosen
&
18
Others
2014
JDR
2325
(LCC)
at
para
[6],
Bertelsmann J held as follow:
"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 Cronwright
&
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
iudgment
is
sought
to
be
appealed
against
."
[My emphasis]
[4]
What resonates from the grounds for leave to appeal both legal
and factual is to a large extent that this court's reasoning was
erroneous and that I failed to take into consideration or give
sufficient weight to other factors. What I do not propose to do is
to
set out the exhaustive grounds of appeal again or repeat that which
was set out in the judgment, in as much as that which was
relevant
was dealt with in the judgment.
[5]
Adv. Becker SC argued that this court should grant leave as
there was a reasonable prospect that another court would come to a
different
decision. On the other Adv. Morison SC argued that this was
not so.
[6]
What I am basically faced with in this appeal, in my view, is
submissions and contentions being made of what I should have found,
should have considered critically, should have considered certain
probabilities and erred in not considering factors and erred
in not
taking certain factors into account.
[7]
There was also the submission advanced by the applicant that
with regard to my finding in paragraph 44 of my judgment that
'There
is nothing untoward about the response that points to him being
untruthful about this aspect',
another court could come to a
different conclusion on the evidence before the court as regards the
aforesaid finding of Tabata.
[8]
I have considered all the submissions advanced by the
applicant in seeking leave to appeal and I do not think I am called
upon to
consider each and every one to conclude
as is
sought
by the applicant that another court would come to a different
conclusion.
[9]
Purely on the basis of my conclusion reached in paragraph 44
of my judgment as regards Tabata, my view, is if another court comes
to a different conclusion than I did on the evidence, then the appeal
would have reasonable prospects of success.
[10]
In light of the aforesaid I find that in
terms of section 17(1) (a) (i) the applicants have made out
a case
for leave to be granted.
[11]
Consequently the following order is made:
[a]
Leave to appeal is granted to the Supreme Court of Appeal and costs
are
costs in the appeal.
____________________________________
W.
Hughes
Judge
of the High Court Gauteng, Pretoria