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2024
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[2024] ZAGPJHC 998
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Engen Petroleum Limited v Sedia Group (Pty) Ltd t/a Engen Northmead Municipality (2022/055474) [2024] ZAGPJHC 998 (3 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
no: 2022-055474
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
3
Oct 2024
In
the matter between:
ENGEN
PETROLEUM LIMITED
Applicant
And
SEDIA
GROUP (PTY) LTD t/a ENGEN NORTHMEAD
MUNICIPALITY
Respondent
Summary:
Application
for Leave to Appeal
–
Test
Restated – Leave to appeal refused
JUDGMENT
Z
KHAN AJ:
[1]
This is an application for leave to appeal by the Respondent in the
principal application. I delivered judgment on 20
February 2024 and
the reasons for such decision have been delivered and I not repeat
such reasons.
[2]
The Respondent in this matter is represented intermittently by an
attorney that comes on record at certain times and not
others. The
papers including heads of argument were professionally drawn and then
Respondent’s attorneys did not attend at
Court. Again, the
attorney again enters the matter and withdraws on 15 May 2024 before
the hearing on 17 May 2024.
[3]
There is also the further matter of the Respondent Companies director
participating in these proceedings.
[4]
The Respondent applied for a postponement from the bar so that he
could obtain funds to secure further representation.
No indication as
to why he did not secure funds or an attorney or when such funds
would become available. I refused the postponement
after hearing
opposing submissions and the Applicants need for finality.
[5]
The Respondent then proceeded to skilfully argue the matter before me
armed with legal submissions. The Application for
leave to appeal
sets out the reasons for the application. I traversed these grounds
with the Respondent.
[6]
The nub of the Respondent’s application for leave to appeal is
that he has secured a government tender and can thus
proceed to do
business with Applicant (who indicate that they do not wish to trade
with Respondent) and that Respondent wants time
to sell the petrol
station business. The petrol station has not been active for some
time, the agreement between the parties has
ended by efflux of time
and there is no obligation on the Applicant to sell the franchise to
any person that the Respondent introduces.
[7]
The further point in papers (but not in argument) relates to the
Beadica argument. I also considered the test set out
in that judgment
and cannot come to the assistance of the Respondent.
[8]
This Respondent merely wants leave to appeal so that he can (in his
mind and admittedly during argument) turn a profit.
That is not the
purpose of leave to appeal.
[9]
The test to be applied in an application for leave to appeal is set
out in
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
which
provides that:
“
(1) Leave to
appeal may only be given where a 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;”
[10]
The Supreme Court of Appeal set out the application for a test to
grant leave to appeal in Cook v Morrison and Another
2019 (5) SA 51
(SCA) as follows:
“
[8] The
existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special
leave.
Something more, by way of special 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 (Westinghouse Brake &
Equipment (Pty) Ltd v Bilger
Engineering (Pty) Ltd
1986 (2) SA 555
(A) at 564H – 565E;
Director of Public Prosecutions, Gauteng Division, Pretoria v Moabi
2017 (2) SACR 384
(SCA) ([2017] ZASCA 85) para 21).”
[11]
I am satisfied that there is no reasonable prospect of success and no
novel legal issue raised by the Respondent.
[12]
The usual order relating to costs in an application for leave to
appeal is that the costs of the appeal follows the suit.
ORDER
[13]
I make the following order:
[14]
The application for leave to appeal is dismissed with costs.
Z
KHAN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed own electronically by circulation to the parties’
and/or parties’ representatives by email
and by being uploaded
to Caselines. The date and time for hand-down is deemed to be
reflected on the Caseline computer system
DATE
OF HEARING: 17 May 2024
DATE
OF JUDGMENT: Judgment: 17 May 2024 (an order and ex tempore reasons
were furnished)
THIS
REASONS FOR JUDGMENT: 03 October 2024 (A request having now been
received for same)
APPEARANCES:
COUNSEL
FOR THE APPLICANT: ADV D MOKALE
ATTORNEY
FOR THE APPLICANT: GOVENDER DLADLA PATEL ATTORNEYS
COUNSEL
FOR THE RESPONDENT: IN PERSON
ATTORNEY
FOR THE RESPONDENT:PAUL T LEISHER INC (WITHDREW)