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[2016] ZAGPPHC 74
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MKM Attorneys v Maredi and Others; MKM Attorneys v Maredi and Others (52777-2011; 52778-2011) [2016] ZAGPPHC 74 (12 February 2016)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
12/2/2016
Not reportable
Not of interest to
other Judges
CASE NO: 52777/2011
In the matter between:
MKM
ATTORNEYS Applicant
and
INNOCENTIA MOSIMA
MAREDI First
Respondent
EXECUTOR (in the
Estate of late H.M Nkosi) Second
Respondent
MASTER OF THE NORTH
GAUTENG HIGH COURT Third
Respondent
CASE NO: 52778/2011
MKM
ATTORNEYS Applicant
and
NAOMI MORONGWA
MAREDI First
Respondent
EXECUTOR (in the
Estate of late H.M Nkosi) Second
Respondent
MASTER OF THE NORTH
GAUTENG HIGH COURT Third
Respondent
JUDGMENT - Leave to
appeal
MAKGOKA. J
,
,
[1] This is an
application for leave to appeal against the judgment of this court
delivered on 2 July 2015. In terms of the order
of that judgment, the
applicant, a firm of attorneys, was found to have been negligent in
handling of the mandate entrusted to
it, respectively, by the second
respondents in the consolidated actions. The application is opposed
by those respondents, the victorious
plaintiffs in the consolidated
actions.
[2] The common law test
in an application for leave to appeal has always been whether there
are reasonable prospects that another
court, given the same set of
facts, might arrive to a different conclusion. That test has been
codified by s 17 of the Superior
Court Act 10 of 2013, in terms of
which leave to appeal may only be given where a judge is of the
opinion that the appeal
would
come to a different conclusion.
During argument I debated with Mr
Vorster
SC, for the
applicant, whether the use of 'would' in the s 17 did not indicate a
heightened threshold than the common law one of
a reasonable
prospect. Counsel contended that despite the wording of the section,
the test remains that of reasonable prospect
of success at common
law.
(My underlining for
emphasis).
[3] I have had careful
and dispassionate regard to the applicants' grounds of appeal, which
amount to no more than a regurgitation
of the arguments advanced in
the main application. Each of the grounds has been dealt with fully
in the judgment, and it would
serve no purpose to repeat what is
stated there. The applicant's insurmountable obstacles include, among
others, the finding that
the letter it addressed to the executor of
the estate of Nkosi did not constitute a claim against that estate.
Factually and legally,
the letter falls far short of a claim. At
best, it amounts to an intention to lodge a claim. The other obstacle
is the failure
of the attorneys to formally terminate their
relationship with Mrs Maredi, thereby creating an impression that she
was still a
client of the firm, thereby denying her an opportunity to
timeously seek second opinion. This aspect is fully dealt with in
paras
[39] - [42] of the judgment.
[4] On aspect worth
mentioning is that the applicant seeks to appeal
largely against the factual findings
of the court. The approach
to be adopted by a court of appeal when it deals with the factual
findings of a trial court trite. A
court of appeal will not disturb
the factual finding of a trial court unless the latter had committed
a misdirection. Where there
has been no misdirection on fact by the
trial Judge, the presumption is that his conclusion is correct. The
appeal court will only
reverse it where it is convinced that it is
wrong. In such a case, if the appeal court is merely left in doubt as
to the correctness
of the conclusion, then it will uphold it. See for
example,
JMYK Investments
CC
v 600 SA Holdings (Pty) Ltd
2003 (3) SA 470
(W) at 472.
[5] In the present case,
I am not persuaded that there has been any misdirection as far as the
factual findings are concerned. For
all the above considerations, I
am not persuaded that any other court would come to a different
conclusion. Even if one adopts
Mr
Vorster' s
proposition that
the ultimate test remains one of reasonable prospects of success, I
am not persuaded there are such prospects.
[6] In the result the
application falls to fail, and the following order is therefore made:
1. The application for
leave to appeal is dismissed with costs.
___________________
T.M. Makgoka
Judge of the High
Court
Heard: 5 February 2016
Judgment delivered: 12
February 2016 Appearances:
For the Applicant:
Instructed by:
Adv. J. Vorster SC
Savage Jooste & Adams
Inc., Pretoria
For the Second
Respondents in
the consolidated actions:
Adv. J. Viljoen
Instructed by: Malan &
Mchale Attorneys, Pretoria