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2024
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[2024] ZANCHC 27
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Waste Re (Pty) Ltd (Formerly Waste Beneficiation (Pty) Ltd) and Another v Recycling and Economic Development Initiative of South Africa NPC (1078/2019) [2024] ZANCHC 27 (5 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NUMBER: 1078/2019
DATE HEARD: 28
November 2022
DATE DELIVERED: 5
March 2024
Reportable: YES /
NO
Circulate to Judges: YES
/ NO
Circulate to Regional
Magistrates: YES / NO
Circulate to
Magistrates: YES / NO
In the matter between:
WASTE Re (Pty) Ltd
(FORMERLY WASTE
BENEFICIATION (PTY)
LTD),
REG.NO:
2014/234102/07)
FIRST
APPLICANT
KHOTHATSO CHRISTOPHER
MOLOI
SECOND RESPONDENT
and
RECYCLING
AND ECONOMIC DEVELOPMENT
INITIATIVE
OF SOUTH AFRICA NPC
RESPONDENT
JUDGMENT
EILLERT AJ
INTRODUCTION
[1]
The Applicants seek leave to appeal to the Full Bench of this
Division against the
whole of the judgment by this Court on 30
September 2022, in terms whereof both the Application for
Reconsideration of the Order
of this Court of 17 May 2019, as well as
the Application for Rescission of the Order of this Court of 8 May
2020, was dismissed,
and the Applicants were ordered to pay the costs
of the Respondent on the attorney and client scale.
[2]
The Application for Leave to Appeal is opposed by the Respondent, who
seeks its dismissal,
with costs.
THE GROUNDS OF
APPEAL
[3]
In their Application for Leave to Appeal the Applicants have
propounded what may be
reduced to four grounds of appeal upon which
they assert that this court have erred and which they submit bear
reasonable prospects
of success on appeal. The Applicants
further assert in their application that there is some other
compelling reason why leave
to appeal must be decided in their
favour, and that the proposed appeal would lead to a just and prompt
resolution of the real
issues between the parties.
[4]
The grounds of appeal set out in the application for leave to appeal
are: (a)that
this Court erred in delaying the issue of judgment and
thereby infringed the Applicants' right of access to the Court
enshrined
in Section 34 of the Constitution of the Republic of South
Africa; (b) that this Court
erred in not rescinding the Order of this Court of 8 May 2020 whilst
the Court was aware that the Applicants were not willfully
absent
from Court on 8 May 2020; (c) that this Court erred in not rescinding
the Order of this Court of 8 May 2020 whilst this
Court was aware
that, subsequent to the Applicants' Application for Leave to Appeal
to the Supreme Court of Appeal in March 2020,
all orders thereafter
was a nullity; and (d) that this Court committed an error of law by
on the one hand holding that the Applicant
should have approached
this Court for a suspension of this Court's order of 6 December 2019,
while on the other hand holding that
this Court's order of 6 December
2019 was of an interlocutory nature and therefore not appealable.
[5]
As can be seen from the grounds of appeal set out in paragraph 4
above, the grounds
of appeal that the Applicants advanced in the
Application for Leave to Appeal all relate to the Application for
Rescission, and
not to the Applicants' Application for
Reconsideration. In argument the Applicants sought to introduce
additional grounds
of appeal relating to the Application for
Reconsideration, with a view to argue that this Court erred for not
having granted the
Order sought in the Application for
Reconsideration. The Respondents objected to the introduction
of additional grounds of
appeal not covered in the Application for
Leave to Appeal.
[6]
This Court recorded in the judgment that the Applicants contended at
the hearing that
the Application for Reconsideration had become
academic and that the Respondents in turn submitted that the
application had become
moot. The concession by the Applicants
led to this Court holding that it would not be in the interest of
justice to adjudicate
the interlocutory application. The
concession is one of law, which was held in
Dengetenge Holdings
(Pty) Ltd v Southern Sphere Mining and Development Co Ltd
2014(5)
SA 138 (CC) to be capable of being withdrawn, if the withdrawal does
not cause any prejudice to the other party.
However, in the
instant case, the Applicants do not seek to withdraw their concession
made at the hearing and did not challenge
the aspects of this Court's
judgment which recorded their concession. The Applicants also
at no stage sought an amendment
of the Notice of Application for
Leave to Appeal to introduce the additional grounds of appeal in a
procedurally correct manner.
The Applicants are therefore bound
to their concession at the hearing and are thereby prevented from
advancing the additional grounds
of appeal. To allow the
additional grounds of appeal would in any event cause significant
prejudice to the Respondent, who
will have been deprived of the
opportunity to oppose the Application for Reconsideration at the
hearing, and to oppose it during
the Application for Leave to
Appeal. This Court in the premise only proceeds to adjudicate
the grounds of appeal propounded
in the Applicants' Notice of
Application for Leave to Appeal.
THE REQUIREMENTS
FOR OBTAINING LEAVE TO APPEAL
[7]
An Application for Leave to Appeal is determined in accordance with
the provisions
of Section 17(1) of the Superior Courts Act. The
determining factors are that leave to appeal may be granted if, in
the opinion
of the Judge dealing with such an application, the appeal
would have a reasonable prospect of success or there is some other
compelling
reason why an appeal should be heard.
[8]
In
MEC for Health, Eastern Cape v Mkhitha and Another
[2016]
ZASCA 176
(25 November 2016) at paragraph 16 to 17 the Supreme Court
of Appeal explained the threshold on an Application for Leave to
Appeal
based on Section 17(1)(a) in the following terms:
"Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is
a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts
Act, 10 of 2013
, makes it clear that leave to appeal may only be
given when the Judge concerned is of the opinion that the appeal
would have a
reasonable prospect of success; or there is some other
compelling reason why it should be heard.
An
Applicant for leave to appeal must convince the Court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There
must be
a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal."
[9]
In
S v Mabena and Another
2007(1) SACR 482 (SCA) at paragraph
22 the Supreme Court of Appeal put the position in the following
terms relating to the essence
of an application that is to be
determined by this Court in granting or refusing leave to appeal:
"It
is the right of every litigant against whom an appealable order has
been made to seek leave to appeal against the order.
Such an
application should not be approached as if it is an impertinent
challenge to the Judge concerned to justify his or her
decision.
A Court from which leave to appeal is sought is called upon merely to
reflect dispassionately upon its decision,
after hearing argument and
decide whether there is a reasonable prospect that a higher court may
disagree."
DISCUSSION
[10]
In
Pharmaceutical
Society of SA and Others v Minister of Health and Another: New Clicks
SA (Pty) Ltd v Tshabalala-Msimang NO and Another
[2005]
1 All SA 326
(SCA) it was held that the right to a fair hearing
entrenched in Section 34 of the Constitution included a right to
delivery of
judgment without unreasonable or unjustifiable delay.
The Court in such matter referred to the matter of Boodhoo and Others
v Attorney General of Trinidad and Tobago (Trinidad and Tobago)
[2004] UKPC 17
(PC), wherein the following statement was made:
"Delay
in producing a judgment would be capable of depriving an individual
of his right to protection of the law, as provided
for in section
4(b) of the Constitution of Trinidad and Tobago, but only in
circumstances where by reason thereof the Judge could
no longer
produce a proper judgment or the parties were unable to obtain from
the decision the benefit which they should."
[11]
The Applicants have not shown that the delay in delivering judgment
had any demonstrable impact on
the rights of either party, least of
all the Applicants. This aspect therefore made no difference to
the question of whether
any prospect of success exists on appeal.
It must then be considered whether the delay in the delivery of
judgment would
constitute some other compelling reason why the appeal
should be heard. The Supreme Court of Appeal has stated that in
respect
of this criterion, the merits of the appeal remain vitally
important and are often decisive.
[1]
This being the position, the Applicants are not granted leave to
appeal on this ground.
[12]
With regard to this Court's finding in the Application for Rescission
that the Applicants failed to
provide a reasonable explanation for
their default, it is so that the transcribed record of the court
proceedings before Makoti
AJ on 8 May 2020 reflect that Makoti AJ
queried whether notification of the proceedings had been served upon
the Applicants, and
that Counsel for the Respondent dealt with the
query by submitting that previously the parties were present in Court
on 14 February
2020 and that the parties are represented. It is
correct that the Applicants were represented in Court on 14 February
2020,
but a prospect does exist that another Court may find that the
explanation given by the Applicants' Attorneys for the default was
not unreasonable, specifically that they were justified in relying on
the impression that the main application had been postponed
sine
die
on 14
April 2020, that they subsequently awaited receipt of a Notice of
Setdown, and that the version cannot be gainsaid that the
Court Order
of 14 April 2020, which only became available shortly before 8 May
2020, did not come to their attention, as it went
into a so-called
spam folder and not the Attorneys' e-mail inbox. I am of the
view that the prospect is a reasonable one.
[13]
The third and fourth grounds of appeal are inter-related. I am
not persuaded that a reasonable
prospect exists that another Court
will find that the Order made by Vuma AJ on 6 December 2019 was
anything other than an interlocutory
order. Nor was there
anything wrong in Vuma AJ on 14 February 2020 fixing the return date
of the rule nisi, which had earlier
been envisaged to be determined
by this Court. Section 173 of the Constitution entrenches the
principle that the High Court
enjoys inherent jurisdiction to
regulate its own process. This was recognized also apply to
rules nisi in
Director of Public Prosecutions and Another v
Mohamed NO
2003(4) SA 1 (CC). With the order of 6 December
2019 being interlocutory, Section 18(2) of the Superior Court's Act
applied
to the effect that, unless this Court under exceptional
circumstances ordered otherwise, the operation and execution of the
order
was not suspended. The section refers to both the
operation and execution of the order, and not only to execution.
I am therefore of the view that the further grounds of appeal carry
no reasonable prospect of success on appeal, and do not constitute
some other compelling reason why the appeal should be heard.
[14]
Although the Applicants have included a reference to Section 17(1)(c)
in their Application for Leave
to Appeal, I do not consider such
section to be applicable in the instant matter.
ORDER
[15]
The following Order is made:
15.1
The Application for Leave to Appeal in respect of the Application for
Reconsideration of the Order of this
Court of 17 May 2019 is
dismissed;
15.2
The Applicants are granted leave to appeal to the Full Bench of this
Court in respect of the Application
for Rescission of the Order of
this Court of 8 May 2020;
15.3
The costs shall be costs in the appeal.
A. EILLERT
ACTING JUDGE
For
the parties:
Applicants:
Adv
MS Sebola
Instructed
by
AA
Solwandle Attorneys
Respondent:
Adv
J van Niekerk SC
Instructed
by
Duncan
& Rothman
[1]
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016(3) SA 317 (SCA) at 330 C