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2024
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[2024] ZAGPPHC 937
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Kgaphola Investment Holdings (Pty) Ltd v Great North Transport Limited (38767/2007) [2024] ZAGPPHC 937 (6 September 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No. 38767/2007
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO
OTHER JUDGES:
YES
/NO
(3) REVISED
DATE: 6 September 2024
SIGNATURE:.
In
the matter between:
KGAPHOLA
INVESTMENT HOLDINGS (PTY) LTD
PLAINTIFF
And
GREAT
NORTH TRANSPORT LIMITED
DEFENDANT
JUDGMENT
MILLAR J
[1]
On 31 July 2024 I granted an order of
absolution from the instance with costs. The Plaintiff has applied
for leave to appeal against
that order. It is opposed.
[2]
For convenience I will refer to the parties
as they were in the main case, as the plaintiff and the defendant
respectively.
[3]
The
test for the granting of leave to appeal pertinent to the present
matter is set out in section 17(1) of the Superior Courts
Act
[1]
as follows:
“
(
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”
[4]
The grounds upon which the application is brought are that the
court misdirected
itself in not accepting the evidence tendered on
behalf of the plaintiff uncritically. Additionally, it is contended
that notwithstanding
their being an onus upon the plaintiff, the
court ought to have
ad miseracordium
refused the application
for absolution in the hope that the plaintiff’s case would be
made out on the evidence led by the
defendant. The entire application
is predicated upon a narrow and self-serving interpretation of the
evidence led.
[5]
It is trite that it is the party who makes an allegation who bears
the onus of proving
it. In the present matter the plaintiff fell
woefully short of doing so, so much so that the test to overcome an
application for
absolution was not met. I dealt with this in the
reasons.
[6]
I have considered the grounds upon which the application has been
brought and the
reasons given by me in the judgment for the order
granted. The grounds are a repetition of what was argued and
considered before
me initially and there is no need to traverse this
terrain again. I have also considered the submissions made by counsel
for the
granting of leave to appeal on the part of the plaintiff and
those opposing the granting of leave to appeal on behalf of the
defendant.
[7]
I am not persuaded that another court would come to a different
conclusion or that
there is some other compelling reason why leave to
appeal should be granted.
[8]
The costs will follow the result.
[9]
In the circumstances, I make the following order:
[9.1]
The application for leave to appeal is refused with costs, which
costs are
to include the costs of counsel on scale C.
A MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
HEARD ON:
6 SEPTEMBER 2024
JUDGMENT DELIVERED ON:
6 SEPTEMBER 2024
COUNSEL FOR THE
PLAINTIFF:
ADV. P MABILO
INSTRUCTED BY:
TYRON I PATHER INC.
REFERENCE:
MR. T PATHER
COUNSEL FOR THE FIRST
DEFENDANT:
ADV. C RIP
ADV.
T PILLAY
INSTRUCTED BY:
VENTER & DE
VILLIERS
REFERENCE:
MR. W VENTER
[1]
10
of 2013.