About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2024
>>
[2024] ZAGPJHC 1097
|
|
Simelane v Santam Limited (35287/2017) [2024] ZAGPJHC 1097 (29 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 35287/2017
In the application for
leave to appeal between:
SIMELANE,
JEROME GIFT
Applicant for leave
[Identity Number: 8[…]
and
SANTAM
LIMITED
Respondent
In re:
SANTAM
LIMITED
Applicant
and
SHIKITA
TRADING (PTY) LTD
First
Respondent
[Registration Number:
2015/096956/07]
SIMELANE,
JEROME GIFT
Second
Respondent
[Identity Number: 8[…]
MZIMELA,
SIZAKELE PETUNIA
Third Respondent
[Identity Number: 6[….]
MZIMELA,
SALAM IVAN
Fourth
Respondent
[Identity Number: 6[….]
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
McCAFFERTY AJ
1.
This is an opposed application by which the
applicant for leave ("the applicant"), who is the second
respondent in the
main application, seeks leave to appeal to the
Supreme Court of Appeal,
alternatively
to the Full Court of the Gauteng Local Division of the High Court of
South Africa Johannesburg against the whole of the judgement
and
order delivered by me on 5 September 2024.
2.
The application for leave was heard
virtually on the morning of Friday, 25 October 2024. Both the
applicant and the respondent in
this application were represented by
counsel. The applicant had delivered a notice of application for
leave. Both parties submitted
heads of argument. I had regard to all
of these documents and of course, to the arguments made orally before
me.
3.
In
section 17(1)
of the
Superior Courts
Act, 2013
, the legislature states the substantive test to be applied
in determining whether leave to appeal ought to be granted:
“
17.
Leave to appeal
(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 of all the issues in the case, the appeal
would lead to a just and prompt resolution of the real issues
between
the parties.”
4.
The present application is pursued in terms
of
section 17(1)(a)(i)
; or (ii).
5.
In the respondent's heads of argument, it
was put that the Act has raised the threshold for the granting of
leave to appeal and
cited various authorities in support of that
contention.
6.
However, in this Division, in
Smartpurse Solutions (Pty) Ltd v Firstrand Bank
Ltd
(35882/2022) [2024] ZAGPJHC 961 (26
September 2024), Meiring AJ, following upon a careful examination of
the historical development
of the decisions of leave to appeal found
as follows:
"[65]
…
In sum, the test is – and appears
always to have been – whether there is or will be a reasonable
prospect of success
on appeal, or, in other words, that another court
might reasonably find differently
[66]
The
Superior Courts Act did
not bring with it a new test for leave to
appeal.
[67]
What the applicant must demonstrate is that there is a “reasonable
prospect of success”. The notion of success
is qualified by the
words “reasonable prospects of”. Something has
“reasonable prospects” where, as the
Supreme Court of
Appeal has held, “[a] sound rational basis for the conclusion
that there are prospects of success …
exist”.
[1]
[68] Considered in the
round, to establish a “reasonable prospect of success” on
appeal, the applicant must demonstrate
that there exists some sound,
cognisable reason why an appeal court would find differently to the
court of first instance. In other
words, there must be a reasonable
possibility, not a certainty, of success on appeal. This possibility
must exist (it must not
be hopeless) and must be reasonable (based on
logic).
[69] For example, the
applicant must show that there is some aspect of the reasoning in the
judgment that has the potential to lead
a different court to a
different conclusion. There must be some factual finding or issue of
law that the applicant can demonstrate
might, as a matter of law,
lead to a different conclusion or in other words, success on appeal.
7.
Having regard to the applicable test, as
set out above, the question is whether the applicant has demonstrated
that he has a reasonable
prospect of success.
8.
The first ground of appeal relates to res
judicata. The second ground of appeal relates to the application of
the
National Credit Act, No. 34 of 2005
.
9.
The applicant contends that the appeal has
reasonable prospects of success. Further, that legal questions raised
are not only pivotal
to this case but to the interpretation of
relevant legislation or legal precedent and that the interests of
justice are served
by granting leave to appeal.
10.
After careful consideration of the grounds
of appeal, the written and oral arguments, I have concluded that a
court of appeal may
reasonably arrive at conclusions different from
those arrived at by me.
11.
In the result, the following order is made:
11.1
Application for leave to appeal to the Full
Court of the Gauteng Local Division of the High Court of South
Africa, Johannesburg
is granted.
11.2
The costs of the application for leave to
appeal are costs in the appeal.
_____________
S McCafferty AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES:
For
the applicant: K
Mitchell,
Chambers Sandton
Instructed
by:
Frese
Gurovich Attorneys, Johannesburg
For
second respondent: T
Seboko, Maisels Chambers
Instructed
by:
Mabuza
Attorneys, Houghton
Date
of hearing: 25 October 2024.
Date
of judgement: 29 October 2024.
[1]
Ramakatsa
v African National Congress,
fn
40, para 10.