About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 123
|
|
Mashala v Modiba and Others (7168/2020) [2024] ZALMPPHC 123 (3 October 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:7168/2020
REPORTABLE: YES/NO
OF INTEREST TO THE
JUDGES: YES/NO
REVISED.
Signature:
DATE:
03/10/2024
In
the matter between:
KOLOBE
MASHALA
APPLICANT
And
MMAKOBO
MICHAEL MODIBA
FIRST
RESPONDENT
KGAUGELO
CHIPANA
SECOND
RESPONDENT
KAYISE
PETROLEUM PTY LTD
(FORMERLY
MODIBA PETROLEUM)
THIRD
RESPONDENT
In
re:
MMAKOBOANI
MICHAEL MODIBA
APPLICANT
And
KGAUGELO
CHIPANA
1
ST
RESPONDENT
KAYISE
PETROLEUM(PTY) LTD
2
ND
RESPONDENT
KOLOBE
MASHALA
3
RD
RESPONDENT
PUMA
ENERGY SOUTH AFRICA
4
TH
RESPONDENT
MATOME
JOHN RAPOTU
5
TH
RESPONDENT
PILGRIM
ONE STOP(PTY) LTD.
6
TH
RESPONDENT
FIRST
NATIONAL BANK.
7
TH
RESPONDENT
JUDGMENT
(LEAVE TO APPEAL)
MONENE
AJ
[1]
Section 17 (1) (a) of the Superior Courts Act No 10 of 2013 (“the
Act”)
provides as follows:
“
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
judgements on the matter under consideration;”
[2]
In
Ramakatsa
and Others v African National Congress and Another (724/2019)
[2021]
ZASCA 31(31 March 2021)
(“Ramakatsa”)
at para 10, the Supreme Court of Appeal held as
follows:
“
I
am mindful of the decisions at high court level debating whether the
use of the word ‘would’ as opposed to ‘could’
possibly mean that the threshold granting the appeal has been raised.
If a reasonable prospect of success is established, leave
to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal
should be
granted. The test of reasonable prospects of success postulates 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 other words, the appellants
in this matter need
to convince this court on proper grounds that they have prospects of
success on appeal. Those prospects of
success must not be remote, but
there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that
there are prospects of success must be
shown to exist.”
[3]
This is an application for leave to appeal against a judgment of this
court delivered
on 6 February 2024 in terms of which this court
dismissed an application brought by the current first respondent as
well as a counter
application which had been brought by the current
applicant who was the third respondent in the initial application.
The current
applicant seeks leave to appeal only against the
dismissal of his counterapplication.
[4]
The findings of the court leading to the dismissal of both the main
and counter application
being patent from the judgment I turn to look
at the grounds for the application for leave which, in sum, are the
following:
4.1
That this court erred in finding that there was on the papers a
dispute of fact incapable
of determination without oral
evidence.
4.2
That this court erred in not referring the dispute of fact to oral
evidence.
4.3
That this court erred in finding that the alternative prayer of
repayment of monies formed
part of the dispute of fact such that it
could not order the alternative relief sought.
[5]
Without unnecessarily regurgitating the judgment, I am not persuaded
that this court’s
judgment is assailable on account of the
following considerations:
5.1
The reason why the applicant injected cash to the tune of R880 500.00
into the third
respondent’s coffers is incapable of being
resolved on the papers in circumstances where he says it was for
shares and the
other shareholders are disputing that. However robust
any court approaches that issue there will still be a need for oral
evidence
and cross-examination to help determine the truth.
5.2
The Heads of Agreement between the parties effectively constitutes a
contract of some form
and in the case of a dispute on the terms
thereof there is no way that any court can without the benefit of
oral evidence determine
the issues.
5.3
The decision whether to dismiss an application on account of a
dispute of fact foreseen
or foreseeable by applicants is
discretionary and can only be vitiated by injudicious exercise of
such a discretion and not by
preferences of the parties. No other
court will, in my view, find fault with how that discretion was
exercised in casu.
5.4
To order the alternative prayer of repayment would have involved
arbitrarily deciding a
genuine dispute of fact one way when the
monies paid by the applicant were clearly at the heart of the dispute
between the parties.
[6]
In my view, none of the grounds mentioned in the notice of
application for leave to
appeal and argued before me are remotely
persuasive to tilt the scales in favour of the applicants when the
section 17(1)(a) test
alluded to
supra
and the Ramakatsa
rationale are applied.
[7]
I understand the law as per section 17(1) (a)(ii) of the Act to be
that beyond a finding
that there are no reasonable prospects of
success a court hearing a leave to appeal application must still
enquire into whether
there is any compelling reason why the appeal
should be entertained and based on which leave may be granted. I am
unable to find
any compelling reason for leave to appeal to be
granted.
[8]
In the unreported matter of
Action
Tinyiko Ngoveni and Another v Premier Limpopo Province and 6 Others
(02/2022) Limpopo local Division, Thohoyandou [26 June
2024]
this court made the following remarks which
perhaps deserve repetition in casu:
“
I
momentarily pause, digress a bit and note that the court in
Ramakatsa,
while
not per se answering the question of whether ‘would’
infers a more strenuous test than ‘could’, went
on to
itself employ the word ‘could’. I venture to state here,
albeit uninvited to go so far, that, it would in my
view not be
humanly possible nor permissible for a court seating as a court
determining a leave to appeal application to make a
finding on what a
court of appeal
would do
.
Such a finding would have some definitiveness which would not only be
prejudging the consequent appeal and thus conflating the
leave and
appeal stages but would, if the appeal subsequently fails,
disrespectfully suggest rather that the court granting the
leave was
in its injudicious soothsayer sighting of the future, some kind of
false prophet. Courts are, as we are taught, steeped
in the facts and
law realm of this planet and have no jurisdiction in the prophetic
spiritual other worldly. In my view therefore,
despite the employ of
the word “would” by the legislature in the Act, the
actual rational intended meaning remains
“could”, which
is not only a lesser attainable threshold but one judiciously and
rationally permissible. Perhaps that
is why the SCA in Ramakatsa did
not pronounce with any definiteness on the debate at “high
court level” on the could/would
interpretation.
”
[9]
In all the above premises there are, in my view, no reasonable
prospects that the
applicant could let alone would succeed on appeal.
The application should thus fail.
[10]
The application for leave to appeal having been opposed successfully
by the second and third
respondents, there is no reason why the costs
of this application should not, as is custom, follow the event.
[11]
In the result, I make the following order:
11.1
The application for leave to appeal is dismissed with costs which
costs shall include the costs of counsel
on scale B
MALOSE. S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
19
July 2024
Judgment
delivered on
:
03 October 2024
For
the Applicant
:
Adv. M S Manganye
:
Instructed by Nyiko Ngobeni Inc.
Attorneys
:
Tel: - 015 010 1378
:
Email:
NyikoN@ngobeni.co.za
For
the 2
nd
and 3
rd
Respondents
:
Adv. R C Mathevula
:
Instructed by Espag Magwai Attorneys
:
Tel:
015 297 5374
:
Email: lit@espagmagwai.co.za