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[2024] ZANCHC 48
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Engelbrecht and Another v Mokitimi and Others (Leave to Appeal) (1424/2022) [2024] ZANCHC 48 (3 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE
NO:
1424/2022
DATE
HEARD:
27
FEBRUARY 2024
DATE
DELIVERED:
03 MAY 2024
In
the matter between:
ENGELBRECHT
,
FRANKEL
N.O.
First Applicant
MAKOBO
,
MMABATHO
LUCIA
Second Applicant
and
MOKITIMI
,
LOUISE
MMAPHUTI
First Respondent
LOUW
,
TEBOGO
CLIFFORD
Second Respondent
MATHEBULA
,
SHANE
Third Respondent
NKOPANE
,
ITUMELENG
Fourth Respondent
ZHANG
,
QING
Fifth Respondent
HUANG
,
CHAOQIANG
Sixth Respondent
In
re:
ENGELBRECHT
,
FRANKEL
N.O.
First Applicant
MAKOBO
,
MMABATHO
LUCIA
Second Applicant
CHARISM
FUNERAL DIRECTORS
CC
Third Applicant
and
MOKITIMI
,
LOUISE
MMAPHUTI
First Respondent
THE
MASTER OF THE HIGH COURT, KIMBERLEY
Second Respondent
FIRST
NATIONAL BANK
TRUST
Third Respondent
LOUW
,
TEBOGO
CLIFFORD
Fourth Respondent
MATHEBULA
,
SHANE
Fifth Respondent
NKOPANE
,
ITUMELENG
Sixth Respondent
ZHANG
,
QING
Seventh Respondent
HUANG
,
CHAOQIANG
Eighth Respondent
Coram:
Nxumalo J
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
Per
Nxumalo J:
1.
The applicants in these proceedings seek
leave to appeal to the Supreme Court of Appeal (the “
SCA”
)
against this Court’s order dated 10 March 2023, rescinding the
rule
nisi
dated 09 September 2022 in respect of an application for a
declaratory order concerning contempt of court. The application is
based on a raft of grounds catalogued in the relevant notice dated 18
August 2023.
2.
It is so that applications for leave to
appeal are regulated by
Section 17
(1) of the
Superior Courts Act 10
of 2013
; to
wit
:
"17
Leave to appeal
(1)
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that
–
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter
under
consideration;
(b)
the
decision sought on appeal does not fall within the ambit of
section
16
(2) (a); and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties."
3.
Whilst
it is trite that an appeal lies against the order and not necessarily
the reasons of the Court
a
quo
[1]
,
suffice it nevertheless to emphasise the following. First,
rule
42(1)
expressly empowers our courts, in addition to any other powers
it may have, to
mero
motu
or upon the application of any party affected, rescind or vary an
order or judgment,
inter
alia
,
erroneously sought or granted, in the absence of any party
thereby.
[2]
The purpose of
the rule is “
to
correct expeditiously an obviously wrong judgment or order.”
[3]
4.
Second,
since a
rule
nisi
is an interim interdict in essence, it is so that it is incumbent in
our law for an applicant to succeed to establish the lack
of another
remedy adequate in the circumstances.
[4]
Third, it has always been so in our law that an interlocutory
order, such as a rule
nisi
may, at any time before final judgment (or before the confirmation of
the
rule
nisi
)
be varied or set aside by the judge who made it or by any other judge
sitting in the same Court and exercising the same jurisdiction.
[5]
5.
It
follows from the foregoing that a
rule
nisi
may be altered or rescinded by a court
mero
motu
or
upon application in terms of
rule 42
in certain circumstances.
[6]
Such therefore cannot be said to be: “
[T]aking
up the role of a Court of Appeal in respect of order of a court of
equal standing”
as contended for the applicants in these proceedings.
[7]
6.
It
is so that it was only after hearing the applicants’ legal
representative, that this Court indicated that it intended to
set
aside the interim interdict. It is also so that the impugned
order was only granted after the said representative was
afforded the
indulgence of the matter standing down for her to consider her
position. This Court was therefore satisfied
that all the
active parties whose interests may be affected had notice of the
impugned order. The remainder of the parties
herein are hit by
the doctrine of peremption or acquiescence.
[8]
7.
In
MEC
Health, Eastern Cape v Mkhitha
[9]
the Supreme Court of Appeal said the following:
[10]
"[16]
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 where 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.
[17]
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."
[11]
8.
Regard being had to the foregoing, this
Court is not
convinced
that on proper grounds, there is a reasonable prospect or realistic
chance of success on appeal. Nor is this Court convinced
that there
is any other compelling reason why the appeal should be heard.
ORDER
9.
In the premise, the following order issues:
A)
THE APPLICATION FOR LEAVE TO APPEAL
IS DISMISSED.
HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION,
KIMBERLEY
[03 MAY 2024]
Counsel
for the Applicants:
ADV
VAN NIEKERK SC assisted by ADV ERASMUS
Instructed
by:
Engelsman
Magabane Inc.
Kimberley
1
st
Respondent:
NO
APPEARANCE
[1]
Manana
v King Sabata Dalindyebo Municipality
[2011] 3 All SA 140
(SCA) at para 3.
[2]
Mutebwa
v Mutwebwa
and
Another
2001 (2) SA 193
(TK) at para 17.
[3]
Bakoven
Ltd v G J Howes
(Pty)
Ltd
1992 (2) SA 466
(E) at 471E-F;
Kili
and Others v Msindwana in Re: Msindwana v Kili
and
others
2001 (1) All SA 339
(Tk) at 345.
[4]
Coalcor
(Cape) (Pty) Ltd and Others v Boiler Efficiency Services
CC
and Others
1990 (4) SA 349
CPD at 353F-H.
[5]
Bell
v Bell
1908 TS 887
;
Duncan
NO v Minister of Law and Order
1985 (4) SA 1
(T) at 2E-J.
[6]
SPCA
v De Swart
1969 (1) SA 655
(OPD) 657G-H.
[7]
Para
13.3, p8 Applicants’ Heads of Argument: Application for
Leave to Appeal, 21 February 2024.
[8]
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State
2021 (11) BCLR 1263
(CC) at para 101 and the cases cited.
[9]
(1221/15)
[2016] ZASCA 176
(25 November 2016);
2016
JDR 2214 (SCA).
[10]
Reference
to other authorities omitted.
[11]
Emphasis
supplied.