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[2016] ZAGPPHC 1080
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Nkosi v MEC for the Department of Health, Gauteng (21336/2014) [2016] ZAGPPHC 1080 (14 December 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 21336/2014
Date: 14/12/2016
Reportable: No
Of interest to other judges: No
Revised.
In the matter between:
BEAUTY NKOSI obo NHLANHLA SIMPHIWE
NKOSI
PLAINTIFF
(RESPONDENT)
And
THE MEC FOR THE DEPARTMENT OF
HEALTH, GAUTENG
DEFENDANT
(APPLICANT)
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
PRETORIUS
J,
(1)
The applicant applies for
leave to appeal against the whole of the judgment dated 31 October
2016. The leave to appeal is
against the application for
recusal of the court and the granting of an inspection
in
loco
.
(2)
The respondent raised a
point
in limine
that the application for leave to appeal should be struck off the
roll with costs. The basis for raising this point
in
limine
is that the
applicant did not deal with the balance of convenience or allege
special circumstances as to why the appeal should
be heard before the
trial has been completed.
(3)
Once
more Mr Strȍh, for the respondent, referred the court to
Health
Professions Council v Emergency Medical Supplies
[1]
where Lewis JA dealt with this:
“…
a piecemeal
determination of issues is undesirable. In Guardian National
Insurance Co Ltd v Searle NO Howie JA said that the 'piecemeal
appellate disposal of the issues in litigation' was not only
expensive, but that generally all issues in a matter should be
disposed
of by the same court at the same time. Thus even if,
technically, an order is final in effect, it may be inappropriate to
allow
an appeal against it when the entire dispute between the
parties has yet to be resolved by the court of first instance.
It should not be forgotten that
Harms AJA in Zweni also said that -
'if the judgment or order sought to
be appealed against does not dispose of all the issues between the
parties the balance of convenience
must, in addition, favour a
piecemeal consideration of the case. In other words, the test is then
-
"whether the appeal - if leave
were given - would lead to a just and reasonably prompt resolution of
the real issue between
the parties". . . .’”
(4)
I have considered the
point
in limine
,
but am of the opinion that I should deal with the merits of the
appeal.
(5)
I have carefully listened
to both counsels’ arguments and once more perused the relevant
authorities to which I was referred
by both counsel. I have
also carefully read the application for leave to appeal and the
respondent’s heads of argument.
(6)
I have come to the
conclusion that I have dealt extensively with all the grounds set out
by the applicant for leave to appeal in
my judgment giving reasons
for not recusing myself and for granting an inspection
in
loco
.
(7)
I
once more confirm those reasons. I find that there is no
reasonable prospect of success of this application on appeal and
that
leave to appeal in terms of section 17(1)(a)(i) of the
Superior
Court Act
[2]
should not be granted.
(8)
In the result I make the
following order:
1.
The application for leave
to appeal is dismissed;
2.
The applicant is ordered
to pay the costs of the respondent, including the costs of two
counsel.
_____________________
Judge C Pretorius
[1]
2010(6) SA 469 (SCA) at paragraphs 16 and 17
[2]
Act 10 of 2013