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2024
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[2024] ZALMPPHC 189
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Mthombeni v Two Mountains Burial Services (Pty) Ltd (Leave to Appeal) (3948/2021) [2024] ZALMPPHC 189 (25 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3948/2021
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE:
25/11/2024
SIGNATURE:
In
the matter between:
GIDIZA
FARIS
MTHOMBENI
PLAINTIFF
And
TWO
MOUNTAINS BURIAL SERVICES (PTY) LTD
DEFENDANT
JUDGMENT
Application
for Leave to Appeal
Deane
AJ
Introduction
1.
This is an opposed application for leave to appeal against my
judgment and Order
handed down herein on 3 May 2024.
2.
The said Order provided as follows:
It is accordingly
ordered that:
1.
The exception application is upheld.
2.
The Plaintiff’s particulars of claim are struck out.
3.
The Plaintiff is ordered to pay the Defendant (excipient’s)
costs.
3.
The reasons for the Order as granted are detailed in the judgment and
will not
be repeated herein.
4.
In anticipation of the hearing of the application for leave to
appeal, the parties
were requested to file short heads of argument.
They both acceded to this request so directed by the Court.
5.
The application for leave to appeal is premised on the twelve (12)
grounds as
listed in the Heads of Argument received on 11 November
2024.
Legal
Principles
6.
The application is governed by
section 17(1)
of the
Superior Courts
Act 10 of 2013
which provides:
"17
Leave to appeal
a.
Leave to appeal may only be given where the judge or judges concerned
are of
the opinion that -
i.
(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,
ii.
the decision sought on appeal does not fall within the ambit of
section 16
(2) (a), and
iii.
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."
7.
In casu
the applicant relies on both grounds of appeal
mentioned in
section 17(1)(a)
of the
Superior Courts Act
>,
namely, that the appeal would have reasonable prospects of success
and that there are compelling reasons justifying the appeal.
8.
Furthermore,
section 16(2)
of the
Superior Courts Act
reads
as
follows:
“
(2) (a) (i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect
or result, the
appeal may be dismissed on this ground alone.
(ii) Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.”
9.
In
MEG
Health, Eastern Cape v Mkhitha
[1]
the Supreme Court of Appeal said the following (reference to other
authorities omitted):
"[16] Once again
it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly
is a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts Act 10
of 2013
makes it clear that leave to appeal may only be given where
the judge concerned is of the opinion that the appeal would have a
reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal."
10.
Furthermore, Bertelsmann J in
The Mont Chevaux Trust v Tina Goosen
& 18 Others
2014 JDR 2325 (LCC) at para 6 stated the
following:
“
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
Cronwright & 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.”
11.
‘In order to succeed’, therefore, the Applicant must
convince this Court on
proper grounds that he has prospects of
success on appeal and that those prospects are not remote but have a
realistic chance of
succeeding. More is required to be established
than that there is a mere possibility of success, that the case is
arguable on appeal
or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational basis for
the conclusion that
there are prospects of success on appeal.
[2]
12.
In
Fair-Trade
Independent Tobacco Association v President of the Republic of South
Africa and Another
[3]
the Full Court observed that:
“
As such, in
considering the application for leave to appeal it is crucial for
this Court to remain cognizant of the higher threshold
that needs to
be met before leave to appeal may be granted. There must exist more
than just a mere possibility that another court,
the SCA in this
instance, will, not might, find differently on both facts and law. It
is against this background that we consider
the most pivotal grounds
of appeal.”
Analysis
and Conclusion
13.
In support of the application for leave to appeal, this court was
referred to a number of
authorities relating to why this court should
grant leave to appeal.
14.
What is important to note is that the merits of an appeal remain
vitally important. Having
read the papers and having carefully heard
counsel I conclude that the numerous grounds of appeal lack merit and
that there is
no reasonable prospect that another court would come to
a different conclusion on the order of the court in terms of
section
17(1)(a)
of the
Superior Courts Act
>.
15.
Indeed, the fact of the matter is that none of the applicants
purported grounds in its leave
to appeal provide any sound or
rational basis to conclude that there is a reasonable prospect of
success on appeal and that another
Court would come to a different
conclusion.
16.
In all the above and taking into account the test on appeal as laid
down, this court concludes
that the Applicant has failed to meet the
required threshold.
Order
Accordingly,
the following order is made:
1. The Appeal is
dismissed with costs on an attorney and client scale.
T
Deane
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE,
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF
:
MH
Letsela
INSTRUCTED
BY
:
Letsela
Nkondo Inc
FOR
THE DEFENDANT :
Adv L Van Gass
INSTRUCTED
BY
:
Nelis
Britz Incorporated
DATE
OF HEARING
:
19
November 2024
DATE
OF JUDGMENT :
[1]
MEG Health, Eastern Cape v Mkhitha (1221/15)
[2016] ZASCA 176
(25
November 2016).
[2]
S v Smith
2012 (1) SACR 567
(SCA) at para 7.
[3]
Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6].