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2024
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[2024] ZAECMHC 34
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Road Accident Fund v Zilwa Attorneys Incorporated and Others (4112/2023) [2024] ZAECMHC 34 (24 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MTHATHA]
Case No:4112/2023
Date heard: 10/5/2024
Date delivered: 24
/5/2024
In the matter of:
THE ROAD ACCIDENT
FUND APPLICANT
And
ZILWA ATTORNEYS
INCORPORATED FIRST
RESPONDENT
HYMIE
ZILWA SECOND
RESPONDENT
THE SHERIFF: EAST
LONDON THIRD
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail. The date and
time
for hand-down is deemed to be
09
H
30
on
24 May
2024.
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
MJALI J:
[1]
This is an opposed application for leave to
appeal to the full bench of this division against the whole of my
judgment delivered
on 06 November 2023 in which I granted the
defendant’s application. The applicant also sought condonation
for the late filling
of the application for leave to appeal. Good
cause was shown and the application for condonation for the late
filling was granted.
[2]
The application for leave to appeal is
opposed by the respondent on the basis that there are no prospects of
success for the proposed
appeal. The judgment and order is challenged
broadly on the grounds that the court erred on facts and in law.
[3]
The law when it comes to a consideration of
whether or not leave to appeal ought to be granted is well settled.
Section 17(1) of
the Superior Courts Act governs applications for
leave to appeal and provides that leave to appeal may only be granted
where the
judge or judges concerned are of opinion that the appeal
would have reasonable prospects of success or there is some other
compelling
reason why the appeal should be heard, including
conflicting judgments on the matter under consideration. In regard to
the question
of reasonable prospect of success, the SCA remarked as
follows:
“
Leave
to appeal should be granted only where there is a sound rational
basis for the conclusion that there are prospects of success
on
appeal”.
[1]
[4]
The
sole question to be considered in such an application is whether
there is a sound rational basis that another court would come
to a
different conclusion on the same facts. The prospects of success must
not be remote but there must exist a reasonable chance
of succeeding.
Although I was satisfied that the order granted and reasons thereof
were sound, I must now reflect dispassionately
upon my judgment and
decide whether there are any prospects of success on appeal. At this
stage I am not called upon to adjudicate
upon the appeal itself.
Commenting on the difficulties inherent in the nature of this
application Ogilivie Thompson AJA
[2]
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. As regards the latter, difficult though it may be
for a trial Judge to disabuse his mind of the fact
that he has
himself found the Crown case to be proved beyond reasonable doubt, he
must, both in relation to questions of fact and
of law, direct
himself specifically to the enquiry of ‘whether there is a
reasonable prospect that the Judges of Appeal will
take a different
view’.
[5]
On the ground that the court erred in
holding that the application fell to be dismissed for failure to join
the claimants in its
urgent application to stay the writ, Mr Notshe
argued that the respondents represented the claimants. The relief
sought in the
application to stay the writ is simply to prevent the
attorneys from taking the steps that they are taking on behalf of the
claimants.
For these reasons he argued that it cannot be said that
they were not party to the application as the respondents represented
them.
The argument went further to state that even if it can be said
that they were not party to the proceedings, no-joinder does not
lead
to a dismissal of an application. In the applicant’s view, the
worst scenario would be to refuse the relief sought and
direct the
applicant to join the necessary party.
[6]
It is crucial to have regard to the relief
sought by the applicant in the urgent application for the stay of the
writ. The relief
sought was couched in the following terms;
“interdicting the third respondent from removing the
applicant’s movable
property or selling the applicant’s
movable property pursuant to
any
writ
of execution issued or
which may be
issued in future
at the instance of the
first and
second respondents
against the applicant absent compliance with the Board Notice 271 of
2022 published in the Government Gazette No. 46322.”
[7]
The problems with the relief sought is so
broadly worded such as to include
any
writ that may be issued in future at the instance of the first and
second respondents.
The first
respondent is a firm of attorneys. True to the nature of their
business they represent many clients in many RAF matters.
Broad as it
has been crafted, it is difficult to which matters are the subject
matter of the interdict. Even worse the relief sought
makes reference
to writs obtained or may in future be obtained by the second
respondent. The capacity in which the second respondent
may be acting
is unclear. At the very least it cannot be said that he represents
the claimants if one has regard to the manner
in which he has been
cited. I have in my judgment sought to be impugned dealt extensively
on this issue and I am as such satisfied
that no other court would
find differently on this fact.
[8]
The same can be said with regards to the
issue of the requirement sought from the respondents prior to the
payment of the monies
due to the claimants it represents, the
applicant cannot wish away the fact that the writs of execution were
obtained pursuant
to court orders that were obtained in favour the
claimants. Further that the applicant failed to comply with such
court orders.
Thus, the applicant cannot by any stretch of
imagination claim to have any prima facie right to stop the operation
of a writ of
execution obtained pursuant to its non-compliance with a
very clear court order particularly when the applicant does not in
any
way challenge the validity of the court order.
[9]
The issue of the requirements that the
applicant seeks from the first respondent in terms of its Policy
promulgated under its Board
Notice 271 of 2022, prior to it
effecting payment in terms of the court order, has been a subject
matter in a number of applications
that have served before various
courts and invariably our courts have held against the
applicant to the extent of setting
aside such aside many of its
clauses including those that form the subject matter of this case.
[10]
Having carefully listened to and given the
submissions made by both counsel some careful consideration I have
not been persuaded
to think that another court would find differently
in this matter. I also cannot any compelling reason warranting the
hearing of
this matter by the appeal court.
[11]
On the issue of costs. The general rule is
that costs must follow the event. There is no reason to deviate
therefrom. In the result
11.1
The
application for leave to appeal is dismissed with costs.
11.2
The
applicant shall pay the costs of this application including those
that are consequent upon the employment of two counsel where
so
employed.553
GNZ MJALI
JUDGE OF THE HIGH
COURT
On
behalf of the Applicant
Adv.
V. S. Notshe SC
Instructed
by
Messers
Mpoyana Ledwaba Inc.
mponyana@ledwaba.co.za
reception@ledwaba.co.za
On
behalf of the Respondent
Adv.
A. Bodlani SC with N. Zilwa
Instructed
by
Messers.
Zilwa Attorneys Inc.
zilwa@zilwaattorneys.co.za
[1]
Four
Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SASA 451
(SCA) at par [34] with reference to S v Smith
2012 (1) SACR 567
(SCA) par [7].
[2]
R
v Muller
1957 (4) SA 642
AD at page 646 paragraph E-G.