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[2024] ZAGPPHC 911
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Cash Crusaders Franchising (Pty) Ltd and Others v Matthews and Another (Leave to Appeal) (29047/2015) [2024] ZAGPPHC 911 (2 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 29047/2015
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: NO
DATE:
02 September 2024
SIGNATURE
In
the matter between:
CASH
CRUSADERS FRANCHISING (PTY) LTD
1
ST
Applicant
OSCAR
JABULANI SITHOLE N. O.
2
ND
Applicant
CHRISTOPHER
PETER VAN ZYL N. O.
3
RD
Applicant
SELBY
MUSAWONKE NTSIBANDE N.O.
4
TH
Applicant
and
MATTHEWS
TUWANI MULAUDZI
VIOLET
1
ST
Respondent
MABONTSI
MULAUDZI
2
ND
Respondent
In
re: MATTHEWS TUWANI MULAUDZI
1
ST
Applicant
VIOLET
MABONTSI MULAUDZI
2
ND
Applicant
and
CASH
CRUSADERS FRANCHISING (PTY) LTD
1
ST
Respondent
OSCAR
JABULANI SITHOLE N. O.
2
ND
Respondent
CHRISTOPHER
PETER VAN ZYL N. O.
3
RD
Respondent
SELBY
MUSAWONKE NTSIBANDE N.O.
4
TH
Respondent
THE
MASTER OF THE HIGH COURT, PRETORIA
5
TH
Respondent
JUDGMENT
ON LEAVE TO APPEAL
KHWINANA
AJ
INTRODUCTION
[1]
This is an application for leave to appeal to the full bench of the
above honourable court against
my judgment granted on this the 06th
December 2023.
[2]
They argue that the judge made errors in both law and fact by ruling
in favour of the respondents.
The respondents, however, maintain that
the judge's decision was legally and factually correct.
[3]
Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the
Superior Courts Act"),
regulates applications for leave to
appeal and provides:
'(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 resolution
of the real issues between the parties.'
[3]
The test in an application for leave to appeal prior to the Superior
Courts Act was whether there
were reasonable prospects that another
court may come to a different conclusion. Section 17(1)
[1]
has raised the test, as Bertelsmann J, correctly pointed out in The
Mont Chevaux Trust v Tina Goosen & 18 Others
[2]
2014 JDR 2325 (LCC) Bretelsman 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
Cornwright & 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.'
[4]
In Westinghouse Brake and Equipment (Pty) Ltd v Builder Engineering
(Pty) Ltd
[3]
the Appeal Court
(as it then was) reiterated the general principle that in order for
an applicant for leave to appeal to succeed,
the applicant must
demonstrate that it has a reasonable prospect of success on appeal.
It was also stated that an appeal would
be allowed where the matter
is of great importance or where the matter is of public importance
whether the court is of the view
the decision might affect other
questions.
[5]
The Supreme Court of Appeal held in Dexgroup (Pty) Ltd v Trustco
Group
[4]
that:
"The need to obtain
leave to appeal is a valuable tool in ensuring that scarce judicial
resources are not spent on appeals
that lack merit. It should, in
this case, have been deployed by refusing leave to appeal.
[6]
After considering the arguments presented by both the applicants' and
respondents' counsel, I
find no evidence that I have misdirected
myself on either the facts or the law. The applicant's leave to
appeal is on parts of
my judgment, save to say the reasons have been
given in my judgment.
[5]
In my view there is no reasonable prospect that another court could
come to a different conclusion.
[5]
In the result:
1.
Leave to appeal is refused.
2.
Draft order is amended and marked X.
2.
Applicant to pay Costs.
ENB
KHWINANA
ACTING
JUDGE OF NORTH GAUTENG
HIGH
COURT, PRETORIA
DATE
OF HEARING:
31
JULY 2024
DATE
OF JUDGMENT:
02
SEPTEMBER 2024
[1]
Commissioner of Inland Revenue v Tuck
1989 (4) SA 888
(T) at 890
[2]
2014
JDR 2325 (LCC) paragraph [6].
[3]
1986
(2) SA 555 (A).
[4]
2013
(60 Sa 520
(SCA) para 24