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2024
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[2024] ZALMPPHC 113
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Voltex (Pty) Ltd v Nkuna and Another (4475/2021) [2024] ZALMPPHC 113 (20 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 4475/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE
JUDGES: YES/NO
(3) REVISED.
DATE: 20/9/2024
SIGNATURE:
In the matter between:
VOLTEX (PTY)
LTD
Applicant
And
KHAZAMULA DAVID
NKUNA
First Respondent
RIRHANDZU RACHEL
NKUNA
Second Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
GAISA AJ
INTRODUCTION
[1]
This is an application for leave to appeal
against my judgment and order dated 2 May 2024, in which I granted a
final sequestration
order against the joint estate of the First and
Second Respondents. This application is brought by the Nkuna (not
disrespect intended)
who were respondents in the main application.
This application for leave to appeal is opposed by Voltex (the
applicant in the main
application). For ease of reference, the
parties shall be referred to herein as they were in the main
application.
LEGAL FRAMEWORK
[2]
The test for granting leave to appeal is
set out in
Section 17(1)
of the
Superior Courts Act 10 of 2013
, which
provides that leave to appeal may only be given where the judge is of
the opinion that:
2.1
the appeal would have a reasonable prospect
of success; or
2.2
there is some other compelling reason why
the appeal should be heard.
[3]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[1]
the
SCA reiterated that leave to appeal must not be granted unless there
truly is a reasonable prospect of success or there is some
other
compelling reason why the appeal should be heard. 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. This
test imposes a
higher bar than the previous test, which only required a reasonable
prospect that another court might come to a
different conclusion.
GROUNDS OF APPEAL
[4]
The Respondents have raised several grounds
for appeal, which can be summarised as follows:
4.1
The court erred in granting a final
sequestration order on 2 May 2024 when a provisional order had been
extended to 28 October 2024
by Kganyago J.
4.2
The court erred in entertaining the
application based on Judge President Phatudi's directive to recall
the provisional order, which
was allegedly issued without hearing the
parties.
4.3
The directive by Judge President Phatudi
violated judicial independence under Section 165 of the Constitution.
ANALYSIS
[5]
After careful consideration of the
arguments presented by both parties, I find that the Respondents'
grounds for appeal are primarily
procedural in nature and do not
address the substantive merits of the sequestration order. This is a
significant weakness in their
application for leave to appeal.
INHERENT POWER OF
THE COURT
[6]
This
Court, as a Superior Court, has an inherent power to regulate its own
processes and set hearing dates, as established in long-standing
precedent. As noted by the Constitutional Court in
Social
Justice Coalition and Others v Minister of Police and Others
,
[2]
Section 173 of the Constitution provides, among others that, the High
Court of South Africa has the inherent power to protect and
regulate
its own process…taking into account the interests of
justice.
[3]
This power is an
important one, allowing courts to act effectively within their
jurisdiction and prevent any possible abuse of
process.
[7]
It is crucial to note, however, that this
inherent power is not unbounded. It does not translate into judicial
authority to impinge
on rights that have vested or been conferred by
the Constitution. The power is primarily about regulating procedure,
not creating
or limiting substantive rights.
[8]
In the present case, Judge President
Phatudi's directive to allocate an earlier hearing date falls
squarely within the court's inherent
power to manage its roll and
ensure efficient administration of justice. This action was a
procedural step aimed at expediting
a long-standing matter, not an
attempt to limit or deny any vested rights.
[9]
It is important to emphasize that litigants
do not have an inherent right to be heard on a date of their
preference. While parties
may express preferences for hearing dates,
the court retains discretion to set dates in the interests of
efficient case management
and administration of justice.
[10]
Furthermore, it is noted that the
respondents did not demonstrate any prejudice resulting from the
earlier hearing date. Given that
they had ample time to prepare their
case since the initial application in 2021, any claim of prejudice
due to the expedited hearing
lacks merit.
[11]
The interests of justice strongly favour
bringing long-standing proceedings to a conclusion without undue
delay. In this case, granting
further delays would not serve the
interests of justice, particularly given the extended history of this
matter.
[12]
Regarding the alleged conflicting
orders
:
12.1
The directive issued by Judge President
Phatudi on 21 December 2023 specifically recalled the return date of
28 October 2024 and
allocated a preferential hearing date of 19 March
2024.
12.2
This directive was a procedural step within
the court's power to regulate its own processes, as established in
long-standing precedent.
12.3
The order made in open court on 19 March
2024, postponing the matter to 2 May 2024, effectively cured any
potential procedural irregularity
in the initial directive.
[13]
On the issue of judicial independence
:
13.1
The Judge President's directive to allocate
an earlier hearing date does not impinge on judicial independence.
13.2
It falls within the court's inherent power
to manage its roll and ensure the efficient administration of
justice.
13.3
Importantly, the Respondents have not
challenged the substantive grounds for granting the sequestration
order. They have not shown
that another court would likely come to a
different conclusion on the merits of the sequestration. This
omission significantly
weakens their application for leave to appeal.
13.4
The Respondents argue that there are two
conflicting orders: the final sequestration order granted on 2 May
2024 and the provisional
order extended to 28 October 2024. However,
this argument fails to recognize that the Judge President's directive
of 21 December
2023 specifically recalled the 28 October 2024 return
date. This directive, while issued in chambers, was a valid exercise
of the
court's power to regulate its own procedures.
13.5
Even if there were concerns about the
procedural propriety of the Judge President's directive, these were
effectively cured by the
open court order of 19 March 2024, which
postponed the matter to 2 May 2024. This order, made with the
knowledge of all parties,
superseded any previous return dates and
set the stage for the final hearing.
[14]
Interests of Justice and Lack of
Prejudice
14.1
The
interests of justice do not favour granting leave to appeal in this
matter. The sequestration proceedings have already been
significantly
delayed, and further delays would likely prejudice the creditors. As
held in
Notshokovu
v S
[4]
the Supreme Court of Appeal reiterated the importance of ensuring
that leave to appeal is granted when there is a reasonable prospect
that another court might arrive at a different conclusion.
14.2
As
I understand it, the Supreme Court of Appeal (SCA) in
Notshokovu
v S
it
highlighted that refusing leave to appeal should be done cautiously,
particularly where there’s a potential for injustice.
The
judgment underscored that leave should be granted if there’s a
reasonable prospect of success on appeal, aligning with
the principle
that the High Court should be slow to refuse leave in cases where a
different conclusion could be reached by another
court.
[5]
14.3
Crucially, the Respondents have not
demonstrated any prejudice resulting from the earlier hearing date.
Given that the initial application
was made on 28 June 2021, they had
ample time to prepare their case. The lack of demonstrated prejudice
further undermines their
application for leave to appeal.
14.4
Moreover, the Respondents have not shown
how the procedural issues they raise have materially affected the
outcome of the case.
Their failure to address the substantive merits
of the sequestration order suggests that even if there were
procedural irregularities,
these did not result in any injustice to
the Respondents.
CONCLUSION
[15]
In light of the above, I am not satisfied
that the appeal has reasonable prospects of success, nor have the
Respondents shown any
other compelling reason why the appeal should
be heard. The application for leave to appeal focuses solely on
procedural issues,
neglecting to challenge the substantive grounds
for sequestration. This, coupled with the lack of demonstrated
prejudice and the
interests of justice in finalising long-standing
proceedings, leads me to conclude that leave to appeal should not be
granted.
[16]
As
emphasized in
Cook
v Morrison
[6]
while
it dealt with special leave to appeal, what the SCA said in that
matter is relevant here too:
“
[8]
The existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of…leave.
Something
more, by way of
[compelling]
circumstances, is needed. These may
include that the appeal raises a substantial point of law; or that
the prospects of success
are so strong that a refusal of leave would
result in a manifest denial of justice; or that the matter is of very
great importance
to the parties or to the public. This is not a
closed list…”
[17]
The Respondents have not demonstrated any
special circumstances that would warrant granting leave to appeal.
[18]
Regarding costs, while I acknowledge the
Respondents' argument that they are vindicating their rights, the
application for leave
to appeal is without merit. The normal rule
that costs follow the result should apply. The Respondents'
contention that they should
not bear costs due to the unusual nature
of the proceedings is not persuasive, as they have failed to
demonstrate any substantive
grounds for appeal or any prejudice
resulting from the procedural steps taken. On the other hand the
Applicant has been successful
in opposing this application.
ORDER
In the result, the
following order is made:
1.
The application for leave to appeal is
dismissed.
2.
The Respondents are ordered to pay the
costs of this application
N GAISA
Acting Judge
High Court of South
Africa
Limpopo Division,
Polokwane
APPEARANCES
FOR THE
APPLICANT
: ADV K. LAVINE
:
ORELOWITZ INC
EMAIL
:
Benhardt@prattluyt.co.za
FOR THE
RESPONDENTS :
ADV MUNZHELELE
:
NTSAKO PHYLIS MBHIZA / BM MUDZULI ATT
EMAIL
:
npmbhizainc@gmail.com
DATE OF
HEARING
:20 September 2024
DATE OF
JUDGEMENT
: 20 September 2024
This judgment is
handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 20 SEPTEMBER 2024.
[1]
(1221/2015)
[2016] ZASCA 176
(25 November 2016).
[2]
(EC03/2016)
[2018] ZAWCHC 181
;
2019 (4) SA 82
(WCC) (14 December 2018)
[3]
[2022]
ZACC 27
at para
[71]
[4]
(157/15)
[2016] ZASCA 112
(7 September 2016)
[5]
Notshokovu
supra
at
paras [2] and [15].
[6]
(1319/2017)
[2019] ZASCA 08
(8 March 2019)