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2024
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[2024] ZAGPJHC 878
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Rustenburg Platinum Mines Ltd v Edcar Engineering CC t/a Edcar Corrosion Protection (Leave to Appeal) (35356/2014) [2024] ZAGPJHC 878 (2 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
Number: 35356/2014
Heard
on: 30 August 2024
Delivered
on: 2 September 2024
(1)
REPORTABLE:
YES/
NO.
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
DATE:
2024-09-02
SIGNATURE
In
the matter between:
RUSTENBURG
PLATINUM MINES LTD
Applicant/Defendant
and
EDCAR
ENGINEERING CC t/a EDCAR
CORROSION
PROTECTION
Respondent/Plaintiff
This
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines.
The date for
handing down is deemed to be 2 September 2024.
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
STRIJDOM
J
[1]
In this matter the applicant applies for leave to appeal to the Full
Court of the Gauteng Division,
Johannesburg, alternatively to the
Supreme Court of Appeal, against the whole of my judgment and costs
order handed down on 27
June 2024.
[1]
[2]
The application for leave to appeal is opposed by the respondent.
[3]
The grounds of appeal are set out in the application for leave to
appeal.
[2]
I do not intend
to repeat same.
[4]
Application for leave to appeal are governed by ss16 and 17 of the
Superior Courts Act, 10 of
2013 (the Act). Section 17 makes
provision for leave to appeal to be granted where the presiding judge
or judges concerned
are of the opinion that the appeal would have a
reasonable prospect of success; or if there is some compelling
reason why
the appeal should be heard including conflicting judgments
on the matter under consideration.
[5]
With the enactment of s17 of the Act, the test has now obtained
statutory force and is to be applied
using the word “would”
in deciding whether to grant leave. In other words, the test
is: “Would another
Court come to a different decision.”
[6]
It is now trite that an appellant faces a higher and stringent
threshold in terms of the Act.
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.
[3]
[7]
In respect of all the grounds of appeal raised by the applicant, my
judgment deals with the facts
and the law as presented by the parties
and how the Court arrived at each conclusion on the contentions
raised by the parties.
[8]
There is no indication in the grounds of appeal that this Court
misdirected itself on the factual
findings.
[9]
It is trite that the powers of a court of appeal against factual
findings are limited. There
must be demonstrable and material
misdirection by the trial court before a court of appeal will
interfere.
[4]
[10]
When the facts and the law were examined, there is in my view no
sound and rational basis for the conclusion
that the appeal would
have a reasonable prospect of success.
[11]
I am also of the view that there are no compelling reasons why the
appeal should be heard.
[12]
In the result, the application for leave to appeal is dismissed with
costs; such costs will include
the costs of two counsel being
payable on Scale C.
J.J.
STRIJDOM
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
35356/2014
HEARD ON:
30 August 2024
FOR THE APPLICANT:
ADV. M. SMIT
INSTRUCTED BY:
Cliffe Dekker
Hofmeyr Inc.
FOR THE RESPONDENT:
ADV. B. LEECH SC
ADV. P. BELGER
INSTRUCTED BY:
Persa Leoni
Attorneys
DATE OF JUDGMENT:
2 September 2024
[1]
Caselines: 013-4-013-41 Judgment
[2]
Caselines: 030-1-030-17 Grounds of appeal
[3]
See:
Van
Heerden v Cronwright & Others
1985
(2) SA 342
(T) at 343H
[4]
See:
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) and
South
African Human Rights Commission obo South African Jewish Board of
Deputies v Masuku and Another
022
(4) SA 1
(CC)