Maim Gamur (Pty) Ltd v Afgri Operations Ltd (LA73/2004) [2004] ZAFSHC 89 (30 September 2004)

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[2004] ZAFSHC 89
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Maim Gamur (Pty) Ltd v Afgri Operations Ltd (LA73/2004) [2004] ZAFSHC 89 (30 September 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Application
nr: LA73/2004
In
the matter between:
MAIM GAMUR (PTY)
LTD
Applicant
and
AFGRI OPERATIONS
LTD
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI
J
_____________________________________________________
HEARD ON:
3
SEPTEMBER 2004
_____________________________________________________
DELIVERED ON:
30
SEPTEMBER 2004
_____________________________________________________
[1] These proceedings
were concerned with an application for leave to appeal. The
applicant who was also the applicant in the main
application applies
for leave to appeal against my judgment which was delivered on
Thursday 29 April 2004. I made the original order
on 12 December
2003 but gave the reasons later.
[2] The application for
leave to appeal is based on the following five grounds:
“
1. His Lordship should have found
that the two lease agreements were severable and should have found
that in as far as ERF 7342 is
concerned, there was no dispute about
the said lease agreement, and respondent was therefore not entitled
to withhold any rent regarding
the said lease. His Lordship should
have found that respondent was compelled to pay the said rent and was
not entitled to a set-off
in view of the dispute of the rent already
paid regarding ERF 5592.
2. His Lordship should have found
regarding ERF 5592, that on the papers, respondent was in possession
of the said erf, had paid rent
in regard of the said erf, and was not
entitled to cancel the said agreement.
3. His Lordship should have found that
on a proper construction of the lease agreement regarding ERF 5592
the respondent was not entitled
to cancel the said lease agreement,
alternatively
His Lordship should have found, that a 7 day notice was too short a
period for a proper cancellation of the said agreement.
4. His Lordship should have found that
in terms of clause 5.8 of both rental agreements the respondent was
not entitled to withhold
any rent in case of any dispute.
5. His Lordship should have found that
respondent has at least, on its own version, occupied the premises
since the 4
th
of September 2003 in terms of the said agreement, and was still in
occupation of the said premises at the hearing of the application
and
was therefore not entitled to cancel the said agreement (in regard to
ERF 5592) and therefore not entitled to withhold any rent
in respect
of ERF 5592.”
[3] On the strength of
the aforegoing grounds mr. Van Rhyn, counsel for the applicant,
assisted by mr. Reinders, submitted that there
is a reasonable chance
that another court might come to the finding that I erred in one or
more or all of those grounds.
[4] The application was
opposed on behalf of the respondent whose counsel mr. Limberis,
contended that the applicant did not have
a reasonable prospect of
success on appeal. He submitted that no other tribunal would differ
from me on the conclusions I reached.
[5] When I was presiding
in the original proceedings I did so from the comfort zone of a man
in the middle. I saw myself in that
middle position as a neutral
mediator. In the eyes of the law I was required and expected to be
an objective assessor in the dispute.
Like a referee in a soccer
match, when I gave the reasons for my judgment I thought I had blown
the final whistle to signal the
end of the match. But it was not to
be. The applicant soon filed a protest. I felt like an umpire
dethroned from an elevated tower
of comfort on the touchline and
drawn right into the tennis court. Here there is no via media
anymore. I am now in the same side
of the tennis court as the
successful party. The unsuccessful party now sees me as its
adversary but the successful party sees me
as its ally. The leave to
appeal is in effect a protest which calls upon a judge to acknowledge
that he or she did not correctly
reason out the judgment.
[6] The invidious
position of a judge called upon to consider whether to grant or not
to grant leave to appeal was eloquently articulated
by
Centlivres
JA
in
REX v
BALOI
1949 (1) SA 523
AD on p. 524 – 525.
“
We
are aware that this Court is able to apply the proper test with
greater ease than the trial Judge. For the trial Judge must, in
the
nature of things, find it somewhat difficult to look at the matter
from a purely objective standpoint; he has a natural reluctance
to
say that his own judgment is so indubitably correct that the Judges
of appeal will concur therein.”
In the case of
AFRIKAANSE
PERS BEPERK v OLIVIER
1949 (2) SA 890
(OPD) on p. 894
Brink
J
appreciated the same difficulty. He expressed himself as follows:
“
Dit
is geen benydenswaarde taak vir ‘n Regter om oor die juistheid van
‘n uitspraak waarmee hy saamgestem het te oordeel nie –
hy sal
soos Appèlregter C
entlivres
in
BALOI
se saak opmerk, ‘n natuurlike huiwering hê om te sê dat sy
uitspraak so ontwyfelbaar juis is dat die Appèlhof nie van hom sal
verskil nie.”
[7]
Ogilvie
Thompson AJA
echoed similar sentiments. About a decade later, he said:
“
From
the very nature of things it is always somewhat invidious for a Judge
to have to determine whether a judgment which he has himself
given
may be considered by a higher Court to be wrong; but that is a duty
imposed by the legislature upon Judges in both
civil and criminal
matters.”
(
vide
REX v
MULLER
1957
(4) SA 642
AD on p. 645)
This passage was later
quoted with approval by
Diemont
JA
in
S
v SIKOSANA
1980 (4) SA 559
AD.
I am in complete
agreement with the aforegoing sentiments by the distinguished four
judges. Today, more than 50 years since the initial
remarks were
made by
Centlivres
JA
we
are still grappling with precisely the same problem. I may add that
the difficulty is here to stay. Seemingly it will never go
away. It
is inherent in human nature.
[8] Over many years the
requisite for leave to appeal has been held to be a reasonable
prospect of success. See for instance
REX v NXUMALO
1939 AD 580
on p. 581;
REX
v NGUBANE AND OTHERS
1945
AD 185
on p. 187;
REX
v BALOI
1949 (1) SA 523
AD;
HAINE
v PODLASHUC & NICOLSON
1933 AD 104
and
S
v SIKOSANA
1980 (4) SA 559
AD.
The basic rule laid down
by the Supreme Court of Appeal is that leave to appeal should not be
granted unless the applicant satisfies
the trial court concerned that
he has a reasonable prospect of success on appeal. This then is the
basic test.
[9] It must be readily
appreciated that the basic rule is formulated in the negative mode
and not the positive mode. This was deliberately
done. In the case
of
THE
ROAD ACCIDENT FUND v DALY;
Case Nr: LTA50/04 (
ex
1857/2001) Free State High Court at par. 9 thereof I said:
“
It
was done on purpose in order to convey the message: that decisions
of our courts of law especially those of the high courts must
generally be regarded as correct unless the contrary can be shown;
that it is incumbent upon the applicant to discharge the onerous
duty
of satisfying the trial court that its decision is probably wrong;
that the trial court should not readily succumb to the temptation
of
believing on flimsy grounds that its judgment is wrong and that it is
neither in the interest of the victorious litigant nor the
interest
of the general public to have the wheels of justice slowed down by
appeals which are devoid of substantive merits.”
[10] Quite often when a
judge is still a novice on the bench, as
in
casu
,
the temptation becomes irresistible to let a matter go on appeal so
that one can see what the higher tribunal of three judges in
the case
of “The High Court” or the higher tribunal of five judges in the
case of “The Supreme Court of Appeal” will decide.
That however
is not a proper test to be applied. Such a temptation, however
attractive and seductive, must be avoided. It is unfair
to the
victorious litigant. It is also undesirable and unwarranted to
burden colleagues in the higher tribunal with appellate jurisdiction
with such undeserving appeals. The test laid down in
REX
v NGUBANE
supra
remains the only proper criterion that should always be applied in
determining whether or not to grant leave to appeal.
“
In
all the cases, no matter what form of words was used, the same thing
was, in my opinion, intended to be conveyed, namely that it
is for
the applicant for special leave to satisfy the Court that, if that
leave be granted, he has a reasonable prospect of success
on appeal.
That was the test applied, for instance, in
BEZUIDENHOUT
v DIPPENAAR
(1943, A.D.
at p. 195), and it is, in my view, the correct one.”
(per Davies AJA in
REX
v NGUBANE
1945
AD 185
on p. 187.)
The dominant issue of the
enquiry is whether, if leave to appeal is granted, the applicant will
have a reasonable prospect of success
on appeal. If the answer is in
the affirmative leave to appeal must be granted. If the answer is in
the negative leave to appeal
must be refused.
[11] In the case of
S
v SHABALALA
1966 (2) SA 297
AD at 299
Rumpff
JA
gave
an instructive and informative exposition of the normative rule.
“
Alleen
dan wanneer die Verhoorregter tot ‘n weloorwoë konklusie kom dat
daar gronde is waarop die Hof van Appèl tot ‘n ander
afleiding van
die feite kan kom as wat hy gekom het, en daar dus ‘n redelike
moontlikheid van sukses vir die applikant bestaan,
behoort verlof
toegestaan te word. Bestaan daardie moontlikheid, behoort verlof ook
toegestaan te word sonder huiwering of teësin.”
[12] Our caselaw shows
that in grappling with the uneasy task of enquiring whether or not
leave to appeal should be granted certain
considerations have weighed
significantly with the Supreme Court of Appeal or the Appellate
Division, as you wish. I might mention
some which may underpin the
refusal of leave to appeal. That leave to appeal is not to be had
for the mere asking. The central
legislator of the national
parliament has not granted a carte blanche licence to appeal as of
right to every vanquished litigant;
(
vide
AFRIKAANSE
PERS BEPERK v OLIVIER
1949 (2) SA 890
on p. 894 per
Brink
J
.)
“
Die
vergunning van verlof om in hoër beroep te gaan is egter geen blote
formaliteit nie.”
- That the victorious
litigant should not be frustrated by unnecessarily subjecting him or
her to the disadvantages and inconvenience
of the appeal procedure.
“
Die
Hof moet sig tevrede stel dat daar ‘n redelike vooruitsig is dat
die appèl sal slaag. Dit is onbillik teenoor ‘n party in
wie se
guns ‘n uitspraak gegee is deur ‘n hoer hof om hom te onderwerp
aan al die nadele van ‘n appèl, indien sy teenparty
geen redelike
kans op sukses het nie.”
(Per Brink JA in
AFRIKAANS
PERS BEPERK v OLIVIER
supra
on p. 894.)
- That it should not be
overlooked that, even if leave to appeal is refused, another
grievance avenue is still open to the applicant
to petition the SCA
President for leave to appeal. (
vide
R v
MULLER
1957 (4) SA 262
AD per
Ogilvie
Thompson JA.
)
- That the amount of the
claim in issue is relatively small in comparison with the tremendous
costs already incurred in connection
with such a claim. (
vide
VOLLENHOVEN
v HOENSON & MILLS
1970
(2) SA 368
(CPD) at 372H – 373B per
van
Wyk J
)
- That it is in the
public interest and in the interest of the successful litigant to
have litigation finalized as speedily as possible;
vide
Vollenhoven
v Hoenson & Mills
supra
at 373 B – C.
- That the gravity of the
adverse consequences of the judgment to the applicant should not
influence the trial judge to relax the
basic rule of a reasonable
prospect on sympathetical grounds.
[13] It will now be
readily appreciated that the grant of leave to appeal is, so to
speak, an exception to the basic rule hence the
description “special
leave”. Where such leave to appeal is granted the reasons have to
be given for the benefit of the higher
tribunal whose duty it will be
to hear the appeals (
vide
S
v SIKHOSANA
1980
(4) SA 559
AD at 562 A per
Diemont
JA.
Where there are several grounds of appeal as in the instant case, it
is expected of the trial judge to indicate those specific grounds
in
respect of which leave to appeal has been granted. Where the trial
Judge is of the opinion that there are merits in some grounds
but
none in others leave to appeal may be limited to the former grounds
by discarding the latter in respect of which a reasonable
prospect of
success does not exist.
Vide
R v
JANTJIES
1958 (2) SA 273
AD at 275 per
Schreiner
JA
as
well as
S
v SIKHOSANA
supra
363B.
[14] The first ground of
appeal relates to the first lease agreement in respect of industrial
property situated at erf 7342. The
critique here is that I failed to
appreciate that the applicant’s claim in this regard was distinct
and separate from the applicant’s
claim which relates to the second
lease agreement in respect of the industrial property situated at erf
5592. Mr van Rhyn submitted
that since there was no dispute about
the first lease agreement the respondent was therefore not entitled
to withhold any rent regarding
the first lease agreement.
[15] I was mindful of the
distinction between the applicants’ two claims against the
respondent throughout. Although I did not
expressly deal with the
first lease agreement the following reasoning was implicit in my
judgment as far as the first lease agreement
was concerned:
- That there was no
dispute between the parties in respect of the first lease agreement.
- That
there was a dispute between the parties in respect of the second
lease agreement.
- That I found in favour
of the respondent that the plaintiff had failed to give the
respondent beneficial occupation of the leased
premises in terms of
the second lease agreement.
- That I found in favour
of the respondent that the respondent did not knowingly pay the sum
of R99 750,00 as due rental to the applicant
in terms of the second
lease agreement.
- That the applicant on
five different occasions submitted to the respondent’s head office
invoices and received on five different
occasions money from the
respondent
sine
causa debiti
.
- That
the respondent had a sound claim against the applicant to recover
such a sum of money inadvertently paid to the applicant.
- That
the respondent was not precluded by the terms and conditions of the
first lease agreement from setting off the amount of the
claim which
the respondent had against the applicant under the second lease
agreement as against the rental the applicant had against
the
respondent under the first lease agreement.
- That
in the end I had to accept the version of the respondent as regards
the applicant’s claim based on the second lease agreement
in
accordance with the rule as fully set out in
PLASCON
EVANS PAINTS (PTY) LTD v VAN RIEBEECK PAINTS (PTY) LTD
1954 (3) SA 623
(AD) at 634 G.
[16] I have done my best
to disabuse my mind in considering this application for leave to
appeal notwithstanding the argument of mr.
Van Rhyn as assisted by
mr. Reinders I am still not satisfied that the applicant has a
reasonable prospect of success on appeal on
the issue of a set off.
I am persuaded by mr Limberis’s submission that the respondent was
entitled to apply a set off. My original
view on this point
therefore remains unchanged.
[17] As
regards the remaining four grounds of the appeal I have nothing
further to add. I abide by the reasons I advanced in my judgment.
I
am convinced that on the argument which was presented to me on 11
December 2003 I came to the correct conclusion.
[18] Accordingly I have
come to the conclusion that I should refuse leave to appeal since the
appellant has not satisfied me on a
balance of probabilities that a
reasonable prospect of success on appeal exists in the instant case.
The applicant is at liberty
to petition the Honourable President of
the Supreme Court of Appeal.
[19] Accordingly I make
the following order:
[19.1] The
application for leave to appeal is dismissed.
[19.2] The applicant is
directed to pay the respondent’s costs relating to this
application.
______________
M.H.
RAMPAI, J
On
behalf of Applicant:
Advocate
AJR Van Rhyn
Assisted
by
Advocate
SJ Reinders
Instructed
by
Honey
Attorneys
BLOEMFONTEIN
On
behalf of Respondent:
Advocate
Limberis
Instructed
by
Lovius
Block Attorneys
BLOEMFONTEIN
/ec