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2024
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[2024] ZALMPPHC 127
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Du Plessis and Others v Pieterse and Others (9912/23) [2024] ZALMPPHC 127 (9 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO: 9912
/
23
(1)
REPORTABLE:
YES
/NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED.
DATE: 09/09/2024
SIGNATURE:
In
the matter between:
GERHARDUS
JACOBUS DU PLESSIS
1
ST
APPLICANT
JOHN
HENRY KEYSER
2
ND
APPLICANT
BRAVOROX
27 (PTY) LTD
3
RD
APPLICANT
PIXIE
DUST TRADING 67 (PTY) LTD
4
TH
APPLICANT
HOHN
HENRY KEYSER N.O
5
TH
APPLICANT
MARTHA
ETRESIA KEYSER N.O
6
TH
APPLICANT
JOHANNES
JACOBUS DEALE N.O
7
TH
APPLICANT
and
SUSANNA
KATRINA PIETERSE
JOHANNESN
ALBRECHT PIETERSE N.O
1
ST
RESPONDENT
2
ND
RESPONDENT
SUSSANA
KATRINA PIETERSE N.O
3
RD
RESPONDENT
In
re:
SUSANNA
KATRINA PIETERSE
1
ST
APPLICANT
JOHANNESN
ALBRECHT PIETERSE N.O
2
ND
APPLICANT
SUSSANA
KATRINA PIETERSE N.O.
3
RD
APPLICANT
and
GERHARDUS
JACOBUS DU PLESSIS
1
ST
RESPONDENT
JOHN
HENRY KEYSER
2
ND
RESPONDENT
BRAVOROX
27 (PTY) LTD
3
RD
RESPONDENT
COMPANIES
AND INTELLECTUAL
PROPERTIES
COMMISSION
4
TH
RESPONDENT
PIXIE
DUST TRADING 67 (PTY) LTD
5
TH
RESPONDENT
HOHN
HENRY KEYSER N.O
6
TH
RESPONDENT
MARTHA
ETRESIA KEYSER N.O
7
TH
RESPONDENT
JOHANNES
JACOBUS DEALE N.O
8
TH
RESPONDENT
JUDGMENT
[LEAVE TO APPEAL]
This judgment is
delivered electronically by way of dispatching same to email
addresses of the parties' legal representatives and
publishing same
on SAFLII. The date of delivery of this judgment is deemed to be 9
September 2024.
SIKHWARI AJ
[1]
For the sake of convenience, I will refer to the
parties as cited in this application for leave appeal above. On 7
November 2023,
this court heard an urgent application brought by the
respondents in these application for leave to appeal who were the
applicants
in the main matter. This court granted an order in favour
of the respondent except prayer 3 of their notice of motion which I
refused
to grant. The essence of the orders granted on 7 November
2023, in my
ex tempore
judgment
was that of an interdict setting aside certain decisions which were
taken by the first and second applicants directors
of the third
applicant on 20 October 2023 are set aside or suspended pending final
adjudication of certain two matters relating
to the dispute over the
management of the third applicant. The first and second
applicants are the majority directors
/ shareholders of
the third applicant.
[2]
Aggrieved by the order of this court, the
applicants filed an application for leave to appeal. It is trite law
that application
for leave to appeal is regulated in terms of
Section
17
of the
Superior Courts Act 10 of 2013
, which provides that:
17.(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 156(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]
Courts have interpreted the above new provisions
of the Act in several decisions and distinguished same from the
previous test of
"reasonable prospects of success" on
appeal. The use of the word
"would"
in
section 17
(1) (a) of the Act above
in the new test has risen the bar to a very higher standard in that
the test now is that the applicant
for leave to appeal must
demonstrate some level of certainty that the appeal may succeed, NOT
that it may succeed, NOT that it
is arguable, NOT that another court
may arrive at a different decision.
[4]
The new test in terms of
section 17
(1) (a) of the
Act was first confirmed, and explained thoroughly, in the case of
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others 2014 JDR
2325 (LCC) at para 6,
where Bertelsman
J held that:
"It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new
Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different
conclusion, see
Van Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at
343H.
The use of the word
"would" in the new statute indicates a measure of certainty
that another court will differ from the
court whose judgment is
sought to be appealed against."
[5]
The Mont Chevaux Trust
test
on leave to appeal was later followed by the court as good current
law in the case of
Acting National
Director of Public Prosecutions and Others v Democratic Alliance In
Re: Democratic Alliance v Acting National Director
of Public
Prosecutions and Others, (19577/09) [2016] ZAGPPHC 489 (24 June 2016)
at para 25,
the full court of the
Gauteng Division in Pretoria, per Ledwaba DJP, Pretorius J and Mothle
J (as he then was) held that:
"The
Superior
Courts Act has
raised the bar for granting leave to appeal ..."
[6]
In the case of
Fair-Trade Independent Tobacco Association V·
President of the Republic of South Africa and Another (21688/2020)
[2020] ZAGPPHC
246 (24 July 2020) at para 6,
the full court of
the Gauteng Division in Pretoria per Mlambo JP, Molefe J and Sasson J
considered the above-stated decisions on
interpreting
section 17
(1)
(a) of the Act, and correctly held that:
"As
such, in considering the application for leave to appeal, it is
crucial for this court to remain cognizant of the higher
threshold
that needs to be met before leave to appeal may be granted. There
must exist more than just
a
mere
possibility that another court, the SCA in this instance, will, not
might, find differently on both facts and llaw. It is against
this
background that we consider the most pivotal grounds of appeal."
[7]
The aforesaid new test was further confirmed as
good current law by the Supreme Court of Appeal (SCA) in respect of
section 17
(1) (a) of the Act in the case of
Smith
v
S
2012
(1) SACR 567
(SCA) at para 7,
where
Plasket AJA held that:
"What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorized
as
hopeless. There must, in other words, be
a sound, rational basis for the conclusion that there are prospects
of success on appeal."
[8]
In another case of
MEC
of Health, Eastern Cape v Mkhitha and Another (1221/2015)
[2016]
ZASCA 176
(25 November 2016, at paragraphs 16 and 17,
Schippers
AJA reaffirmed the SCA's disapproval to the granting of leave to
appeal where the new threshold of a higher test was not
met when the
unanimous judgment of the SCA held that:
"[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 prospect of success
on appeal."
[9]
The court was informed by the fact that the first
and second applicants took certain resolutions in a meeting held on
20 October
2023 in which the minority directors / shareholders were
not invited. This factor is common cause. The reason for not inviting
the respondents at the meeting of 20 October 2023 was solely that the
said directors/ shareholders are conflicted. The proper course
should
have been to invite them and let them declare their conflict or
simply by excused by a resolution of the third respondent,
but not by
the dictates of the first and second respondents. The latter approach
which was preferred by the applicants was grossly
irregular and / or
unlawful and/ or irrational in the circumstances.
[10]
The court has not closed the door of the applicants to have their
litigation against the debtors
of the third applicant herein. The
court has simply emphasized and upheld the rule of law in that it has
left the door open for
the directors or shareholders of the third
applicant to convene a proper meeting which complies with the law;
and then take proper
and lawful resolutions within the parameters of
the Companies Act.
[11]
In the premises, this court is of the view that the appeal has no
reasonable prospects of success
and / or does not meet the threshold
as stated in
Section 17
of the
Superior Courts Act 10 of 2013
, as
amended. This application for leave to appeal has to fail, with costs
on party and party scale, on Scale C, against the first,
second,
fifth, sixth and seventh applicants in the application for leave to
appeal, jointly and severally with the one paying the
other to be
absolved.
[14]
Accordingly, the following order is made:
1.
That the application for leave to appeal is
dismissed.
2.
The first, second, fifth, sixth and seventh
applicants in the application for leave to appeal are ordered to pay
costs of this application
on Scale C (of party and scale), jointly
and severally with the one paying the other to be absolved.
MS SIKHWARI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DVISION,
POLOKWANE
APPEARANCES:
For
Applicant
Adv FJ Van der Merwe
Instructed
by
Burger & Vennote
c/o
Swanepoel, Steyn & Spruyt
Attorneys For
Respondents: Adv JR Minnar & JA Pieters
Instructed
by
Heyns and Partners Attorneys
c/o
Kirk Twine Attorneys
Date of hearing
:
03 May 2024
Date of
Judgment:
09 September 2024