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[2016] ZAGPPHC 108
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Verulam Sawmills (Pty) Ltd v Magagula and Others (82258/2015) [2016] ZAGPPHC 108 (30 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE: 30/3/2016
CASE NO: 82258/2015
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
VERULAM SAWMILLS (PTY)
LTD APPLICANT
And
SAMUEL DECEMBER
MAGAGULA 1
ST
to 158 FURTHER RESPONDENTS
AMCU 2
ND
RESPONDENT
JUDGMENT ON LEAVE
TO APPEAL
MSIMEKI, J
[1] This is an
application for leave to appeal against the whole of the judgment
that I handed down on 4 December 2015 ‘to
the Supreme Court of
Appeal, alternatively to the full bench of the North Gauteng
Division’.
[2] The grounds of appeal
are succinctly contained in the Notice of Application for leave to
appeal.
[3] The application for
leave to appeal was heard on 29 March 2016. Mr Van der Merwe
represented applicant while Ms Malan represented
first and second
respondents.
[4] The application is
based on section 17 of the Superior Court Act 10 of 2013 (the
Superior Court Act). The section provides:
“
17 Leave to
appeal
(1)
Leave to appeal may be given where the judge or
judges concerned are of the opinion that –
(a)
(1) 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;”
[5] Erasmus: Superior
Court Practice at A2-56-57 discusses the provisions of section (a)
(i) and (ii). The word ‘may’
in subsection 1, according
to Erasmus, denotes the power that a judge or judges ‘shall
have’ which exits not upon the
discretion of ‘the judge
or judges concerned’ but upon proof of the particular
circumstances in which the power may
be used’.
(See Stroud
Riley and Co Ltd v Secretary for Inland Revenue
1974 (4) SA 534
(E
)
at 539A-540D)
Once satisfied that the requirements set out on
paragraphs (a) to (c) of the subsection are met, the judge or judges
concerned
are bound, ‘as a matter of duty, to grant leave to
appeal’.
[6] It is important to
mention that applicant, in a leave to appeal application, does not
have to satisfy the judge or judges concerned
that the appeal would
have a reasonable prospect of success and that there is some other
compelling reason why the appeal should
be heard, including
conflicting judgments on the matter under consideration
This is clearly denoted
by the use of the word ‘or’. Applicant need only satisfy
the judge or judges concerned that
the provisions of either section
17 (1) (a) (i) or, 17 (1) (a) (ii) are met in which case the judges
must give leave to appeal.
[7] Mr Van der Merwe
submitted that it was unfortunate that the matter had started in the
urgent court, an inappropriate forum,
to deal with a matter such as
this. However, the matter, according to him, is of substantial
importance to the applicant and the
respondents. His view, further,
is that the matter involves an important question of law and that, as
Erasmus puts it, ‘the
administration of justice, either
generally or in the particular case concerned, requires the appeal to
be heard’. As correctly
conceded by Ms Malan, there are indeed
conflicting judgments on the issues under consideration. It is indeed
true and clear that
it is of public importance and in the public
interest that legal certainty be obtained on the issues raised. This
requires the
Supreme Court to step in and resolve the differences of
opinion. The decision to be appealed, in my view, involves the
question
of law. This is in line with the provisions of section 17
(6) (a) of the Superior Court Act.
(See Haine v Podlashuc and
Nicolson
1933 AD 104
at 105;and African Guarantee Indemnity Co Ltd v
Van Schalkwyk
1956 (1) SA 326
(A) at 329; Attorney-General Transvaal
v Nokwe
1962 (3) SA 803
(T) at 807A and Westinghouse Brake and
Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555(A)
at 560I).
Mr Van der Merwe
submitted that section 213 of the LRA needs to be properly
interpreted for the benefit of the parties in this and
other matters.
This is indeed truism.
[8] Ms Malan held the
view that the court had properly dealt with all the issues in the
matter and that the appeal was unnecessary.
She, however, conceded as
I have already alluded thereto, that there are indeed conflicting
judgments on relevant issues. This
is the reason, Mr Van der Merwe
submitted, that the assistance of the Supreme Court of Appeal was
required. I agree.
Leave to appeal, in my
view, should be granted.
ORDER
[9] The following order
is made:
1. Leave to appeal
against the whole of my judgment handed down on 4 December 2015, to
the Supreme Court of Appeal is granted.
2. Costs will be costs in
the appeal.
____________________________
M W MSIMEKI
JUDGE OF THE GAUTENG
DIVISION, PRETORIA
Heard on 29.3.2016
For the
Applicant: Adv
H A Van der Merwe
Instructed
by: Larry
Dave Inc
For the
Respondent: Adv
C J Malan
Instructed
by: Fluxmans
Inc