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[2017] ZANCHC 59
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Augustyn v Minister of Defence (918/2011) [2017] ZANCHC 59 (6 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 918/2011 Heard on: 22/09/2017
Delivered
on: 06/10/ 2017
In
the matter between:
HEIN
AUGUSTYN
APPLICANT
And
THE
MINISTER
OF
DEFENCE
RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAMOSEBOJ
[1]
The applicant, Hein Augustyn, seeks leave to appeal to the Full
Bench of the Northern Cape Division against the whole
of my judgment
and order granted on 07 July 2017 in which I dismissed his special
plea with costs.
[2]
The grounds upon which the applicant relies are that I erred in
finding:
2.1
That
the matter of
Holeni
v Land Agricultural development Bank of SA
[1]
finds application
in
casu
while
the facts are distinguishable;
2.2
That the claim arose from an advance or loan granted by the
respondent to the applicant;
2.3
That
the debt does not fall under s I 1(d)
[2]
which prescribes after a period of three
years;
2.4
That the respondent has made out a case that his
debt
is covered under s 1 I (b) of the Act.
[3]
The contention by the applicant is that another Court could
reasonably arrive at a different conclusion than that which I have
reached. The test to be applied in determining
whether an application for leave
to
appeal
should
be granted or not is governed by s 17
[3]
which stipulates:
"(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 reasonable
prospects
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 s 16(2)(a)
,
·
and
(c)
Where the decision sought to be appealed does not dispose of
all issues in the case, the appeal would lead to a just and prompt
resolution of
the
real
issues
between the
parties.
"
[4]
In
S
v Smith
[4]
Plasket AJA stressed:
''[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that
a court
of appeal could reasonably arrive at a conclusion
different to that of the trial
court. In
order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects
of success
on appeal and that those prospects are not remote but have a
realistic chance of succeeding. More is required
to be established
than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot
be categorised as
hopeless. There must,
in
other words, be a sound, rational basis for the
conclusion that there are prospects
of
success on appeal.
"
As
reiterated by Leach JA in
S
v Kruger
[5]
the Courts should follow the aforementioned test
scrupulously in the interests of justice.
[5]
Following
the submissions by counsel the crux of the dispute in this
matter is whether this claim falls under s 11(b) or (d)
of the
Prescription Act
[6]
Adv Olivier,
for the applicant, reiterated the common cause in
as far as the respondent being the State
and therefore meeting
the first leg of the requirement in 11(b). Counsel's
further submission was that
the use of the conjunction "and"
between the first leg of the requirement and the second leg, that is,
"
and
arising
out of an advance or loan of money",
makes
it imperative for the second requirement to also be met, which has
not been met and therefore the dispute must fail. I do
not agree for
the reasons that follow.
[6]
It is common cause that the respondent is the state. This means that
a determinable amount of money came from the
fiscus
or
budget of the state to pay for the training of the applicant in
return for his services for a determined period.
The condition
attached was that should he leave before the expiry of that
period he will have to repay, not to an individual
but the state, the
apportioned amount of what was due and owing to the state. The
applicant sought to convince me that this second
leg of the
requirement was not met because there was no advance or loan
awarded to the applicant. This argument misses
the mark. What
is not in contention is that an amount of money was
allocated for his training on terms and conditions
he agreed to and
which amount is now due and payable because he breached them.
[7]
Having regard to the above guidance by the Supreme Court of Appeal
and
having dispassionately considered the application I am of the
view that the main judgment has adequately dealt with the
aspect
that the period of prescription is indeed 15 years under s
11(b) of the Prescription Act. The main judgment
demonstrates
adequately how I followed the
Holeni
judgment and requires no
repetition. I am satisfied that the applicant has no reasonable
prospects of success on appeal and his
application stands to fail. I
am not swayed that a court of appeal could reasonably arrive at a
conclusion different to the one
that I have reached.
[8]
In the result the following order is made:
The
application for leave to appeal is dismissed with costs.
_________________________
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the applicant:
Adv AD Olivier
Instructed
by:
Haarhoffs Inc
For
the respondent:
Adv S Motloung
Instructed
by:
The State Attorney
[1]
[2009] 3 All SA 22 (SCA)
[2]
Of the
Prescription Act, 68 of 1969
[3]
Of the Superior Courts Act, 10 of2013
[4]
2012 ( 1 ) SACR 567 (SCA) para 7
[5]
2014 ( 1) SACR 647 (SCA) at 649d (para3)
[6]
Sec 11
of the
Prescription Act, 68 of 1969
, deals with the periods
of prescription of debts and stipulates that: "The periods of
prescription of debts shall be the
following:
(b)
Fifteen years in respect of any debt owed to the State and
arising out of an advance or loan of money or
a sale or
lease of land by the State to the debtor, unless a longer period
applies in respect of the debt in question
in
terms of paragraph (a);
(c)
-
(d)
Save where an Act of Parliament provides otherwise, three
years
in respect of any other debt".