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[2014] ZAFSHC 147
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Moloi v Medi-Clinic (Pty) Ltd (4889/2013) [2014] ZAFSHC 147 (21 August 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: 4889/2013
In
the matter between:
ERNEST
JABULANI MOLOI
…............................................................................................
Applicant
and
MEDI-CLINIC
(PTY) LTD
…...............................................................................................
Respondent
JUDGMENT
BY
: JORDAAN, J
DELIVERED
ON
: 21 AUGUST 2014
[1]
The applicant applies for leave to appeal to the Supreme Court of
Appeal, alternatively the full bench of this division against
the
whole of the order and judgment given by myself and delivered on the
28
th
of June 2014 in terms whereof the applicant’s application was
dismissed with costs.
[2]
The parties were invited to serve and file heads of argument in
relation to the application for leave to appeal whereafter the
matter
will be disposed of by myself in chambers, subject to any party
having any objection to the aforesaid procedure to object
thereto
within 5 days. None of the parties objected and indeed filed
the necessary heads of argument.
[3]
The grounds relied on by the applicant for leave to appeal are in
essence exactly the same grounds as were relied upon in the
application that served before me. However at this stage the
question to be answered and considered is not whether I believe
that
the judgment was correct but whether, viewed dispassionately and
objectively, a reasonable possibility exists that a court
of appeal
may come to a different conclusion which would lead to a different
order from the one I made in the matter.
[4]
In the heads of argument on behalf of the applicant the same
arguments that were raised in the application are repeated although
not all the arguments are raised in this application again.
[5]
As far as my finding as to
res iudicata
following upon the eviction order granted by the Magistrate Court is
concerned, I in any event dealt with the merits of the application
in
the alternative in the judgment. What is more, it was common
cause that, after being notified that the lease agreement
will not be
renewed, the applicant negotiated and entered into a new two month
lease agreement expiring by the end of April of
that year. Not
only did he do so but, through his attorney, undertook to vacate the
premises at the expiry of the extended
new 2 month lease agreement.
The only reasonable inference to be drawn from his behaviour is that
he abided by the decision
of the respondent not to renew the lease
and did not rely on any so-called reasonable expectation that the
lease will be automatically
renewed at the expiration thereof.
The stance that the applicant had a reasonable expectation of an
automatic renewal of
the lease was only taken after the expiration of
the extended new lease agreement and after he refused to vacate the
premises as
undertaken by him.
[6]
As far as the entitlement to renew the lease is concerned and the
eviction order that was granted by the Magistrate’s
Court is
concerned, even if I was wrong in holding that it was
res
iudicata
, I am convinced that, on the
evidence in the matter, another court would not come to a different
conclusion as to the success or
not of that part of the relief
sought. I am therefore, not convinced that a reasonable
possibility of a different outcome
on appeal exists.
[7]
As far as the related so-called admission privileges are concerned,
it is argued that another court might reasonably come to
another
conclusion in that those privileges are not necessarily connected to
the lease agreement. In this regard it is clear
from the
founding affidavit that the present applicant himself regarded the
so-called admission privileges as a corollary to the
lease
agreement. In paragraph 35 of the application the following is
stated by the applicant:
“
It
was, at all times relevant and pertinent to this application, in the
partie’s contemplation that the conduct of my practise
from
respondent’s premises would, invariably, have obvious financial
advantages for the respondent and me. Moreover,
it was accepted
by both the respondent and me that, consequentially, my patients had
come to expect health care services to be
rendered by me at the
respondent’s premises, as their hospital of choice, be it by
way of normal medical service or emergency
medical services.”
[8]
From the quoted passage it is clear that even the applicant regarded
the admission privileges as consequential upon his leasing
of rooms
at the respondent’s premises. The applicant himself
refers to those so-called “rights” as privileges
in
various paragraphs of his founding affidavit. The word
“privileges” is indicative of the fact that those are
not
rights but privileges awarded by the respondent to lessees of
premises at respondent’s property. The furthest the
applicant went in regard to these privileges was to state that the
respondent allows some other doctors that do not lease premises
from
respondent the same admission privileges. It was stated as
follows:
“
It
will suffice at this juncture to point out that the author of the
letter unfortunately fails to mention that the respondent has
a
number of doctors with admission privileges that do not have lease
agreements with it.”
It
was never contended on behalf of the applicant that all doctors,
including him, are entitled to such privileges and have been
afforded
such privileges by the respondent.
[9]
After considering the above and all the arguments on behalf of the
applicant, I am not convinced that a reasonable prospect
exist of a
court of appeal coming to another conclusion that would have any
effect on the eventual order made.
[10]
On behalf of the respondent it was argued that, if the application is
unsuccessful, the costs of two counsel should be allowed.
Although, in the main application, I was of the view that the
employment of two counsel was justified and their costs should be
paid by the applicant, I am not convinced that the employment of two
counsel for the purpose of filing heads of argument in the
application for leave to appeal is justified.
[11]
In the result the application for leave to appeal is refused with
costs.
________________
A.
F. JORDAAN, J
On
behalf of applicant: Adv. N. Snellenburg
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Burger SC
with
A. Brown
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN