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[2015] ZAGPPHC 325
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Lewis and Another v Vexma Properties 329 CC, In Re: Vexma Properties 329 CC v Lewis and Another (A774/14) [2015] ZAGPPHC 325 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A774/14
DATE:
8/5/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
EUGENE
LEWIS
...............................................................................................................
First
Applicant
ALLAN
VAN
WYNGAARDT
.......................................................................................
Second
Applicant
and
VEXMA
PROPERTIES 329
CC
............................................................................................
Respondent
IN RE:
VEXMA
PROPERTIES 329
CC
...............................................................................................
Appellant
and
EUGENE
LEWIS
...........................................................................................................
First
Respondent
ALLAN
VAN
WYNGAARDT
...................................................................................
Second
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
POTTERILL
J
[1]
Pursuant to trial the plaintiff’s claim against the defendants
was dismissed with costs, such costs to include costs of
counsel on a
higher scale in the discretion of the Taxing Master.
[2]
This order was appealed against. The appeal was upheld by
myself and Kganyago AJ.
[3]
The applicants (defendants in the main action) approached this court
for leave to appeal against the order granted on appeal.
[4]
The respondent in this application (the plaintiff in the main action)
raised a point
in limine
that this court is barred from entertaining such application for
leave to appeal in terms of section 16(1)(b) of the Superior
Courts
Act 10 of 2013 (“the Act”).
[5]
Section 16(1)(b)
of the
Superior Courts Act reads
as follows:
“
An
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal.”
A
“
division”
is in
section 1
defined as being “
means
any Division of the High Court”
.
[6]
Section 17(3)
of the
Superior Courts Act sets
out the procedure to be
followed under section 16(1)(b) of the Act.
[7]
It was argued that the interpretation of section 16(1)(b) and
section
17(3)
of the
Superior Courts Act is
clear; the Supreme Court of
Appeal now has the exclusive right to decide which cases is justified
for consideration by that
court. The practical effect thereof
is thus that this Court cannot grant leave to appeal, only the
Supreme Court of Appeal
could do so.
[8]
On behalf of the applicants for leave to appeal it was argued that
section 16(1)(b)
only relates to full court appeals; i.e.
judgments of a court consisting of three Judges.
I
cannot agree with such submission. Nowhere in section 16(1)(b)
of the Act does it specify that it only relates to a full
court
decision and not a full bench decision. Not on any construction or
interpretation must that be read into section 16(1)(b)
of the Act –
Natal Joint Municipal Pension Fund v
Endumeni Municipality
2012 (4)
SA 593
(SCA).
[9]
In
Van Wyk v The State
(20273/2014)
and
Galela
v The State
(20448/2014)
[2014] ZASCA 152
(22
September 2014) the following was found:
“
[19]
The jurisdiction of this court to hear appeals from the high court
whether as a court of first instance, or an appeal
court is derived
from this section and s 19 of the Act. Whereas under s 20(4) of
the SC Act, the special leave of this court
was only required in
respect of an appeal from a decision of the full court (three judges)
given on appeal to it, the special leave
of this court is now also
required where leave to appeal is sought in respect of a decision of
two judges, given on appeal to it.”
The
Supreme Court of Appeal has accordingly thus found that the correct
interpretation of section 16(1)(b) of the Act is that all
applications for leave to appeal must be sought with special leave of
the Supreme Court of Appeal. The court also found that
there is
no distinction between a decision of the High Court on appeal to it
in terms of section 16(1)(b) of the Act or a judgment
or order of the
High Court given on appeal to it.
[10]
In paragraph [22] of the above judgment the court found:
“
[22]
Rule 6 of the rules of this court, which deals with applications for
leave to appeal must be scrupulously followed.
The application
must succinctly set out the respects in which it is alleged the high
court erred and the judgment must be subjected
to a critical
analysis, either as to the findings of fact or as to the exposition
and application of the law. A generalised
attack on the
findings of the high court is insufficient, as is reliance on the
notice of appeal, or a recitation of the grounds
of appeal.”
[11]
In paragraph [20] of the judgment the following is stated:
“
[20]
… Although s 16(1)(b) of the Act has ameliorated the
‘cumbersome procedure’ to the extent that an
unsuccessful
petitioner in the high court no longer has to obtain the leave of the
high court to appeal to this court, it has replaced
it with the more
stringent requirement that ‘special leave’ be obtained
from this court.”
On
behalf of the applicant in the application for leave to appeal before
us it was argued that it could not be the intention to
open the
floodgates to the Supreme Court of Appeal with such applications.
However this is countenanced with the stricter
test for applications
for leave to appeal as set out
supra.
[12]
In
Potgieter v S
(20109/2014)
[2015] ZASCA 15
(17 March 2015) it was
once again found by the Supreme Court of Appeal that in terms of
section 16(1)(b) of the Act an appeal to
the Supreme Court of Appeal
against a decision of a court on appeal to it lies only with the
special leave of the Supreme Court
of Appeal.
[13]
I accordingly make the following order:
The
application for leave to appeal is struck from the roll with costs,
including the costs of two counsel.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
F.
KGANYAGO
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A774/14
HEARD
ON: 30 April 2015
FOR
THE APPLICANTS: ADV. M.P. VAN DER MERWE SC
INSTRUCTED
BY: Couzyn, Hertzog & Horak
FOR
THE RESPONDENT: ADV. H.F. JACOBS SC AND ADV. R.C. DE ALCANTARA
INSTRUCTED
BY: Heiko Draht Attorneys
DATE
OF JUDGMENT: 8 May 2015