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[2024] ZAFSHC 379
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Wolhunter N.O and Others v Mtetwa Investments (Pty) Ltd (4542/2023; 4543/2023) [2024] ZAFSHC 379 (15 November 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
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
NO
CASE
NO.: 4542/2023
In the application
between:
JOHANNES
JACOBUS WOLHUTER N.O.
First
Applicant
[1]
FANTI
BEKKER HATTINGH N.O.
Second
Applicant
STEPHEN
FOUCHEé N.O.
Third
Applicant
[In their capacities
as joint trustees of the QWAHA TRUST.
Master’s
reference number: IT1339/2005]
and
MTETWA
INVESTMENTS (PTY) LTD
Respondent
[2]
[Registration number:
2014/253458/07]
CASE
NO.: 4543/2023
In
the application between:
JOHANNES
JACOBUS WOLHUTER N.O.
First
Applicant
FANTI
BEKKER HATTINGH N.O.
Second
Applicant
STEPHEN
FOUCHEé N.O.
Third
Applicant
[In
their capacities as joint trustees of the QWAHA TRUST.
Master’s
reference number: IT1339/2005]
and
ALFRED
ZAKADE MTETWA
First
Respondent
[3]
[Identity
number: 5[…]]
ZINVONOX
(PTY)
LTD
Second
Respondent
[4]
[Registration
number: 2018/329246/07]
JOHANNES
STEPHANUS OLIVIER
Third
Respondent
[Identity
number: 8[…]]
Coram:
M Opperman J
Heard
:
2 August 2024
Delivered:
15 November 2024. This order was
handed down electronically by circulation to the parties’ legal
representatives
via
email and release to SAFLII on 15 November 2024. The date and time of
hand-down is deemed to be 15h00 on 15 November 2024
Reasons:
22 November 2024
Summary:
Application for leave to appeal –
condonation for late filing – new case in reply.
ORDER
1.
Both applicants’ applications for
leave to appeal are granted in the following terms:
a.
The applicants’ applications for
leave to appeal are granted under case numbers 4542/2023 and
4543/2023 in respect of the
first order made on 4 April 2024 and such
leave is granted to the Full Court of the Free State Division
(Bloemfontein);
b.
the costs of both applications for leave to
appeal are costs in the appeals.
2.
Reasons for judgment may be uplifted from
the Registrar of this Court on Friday 22 November 2024.
REASONS FOR JUDGEMENT
Opperman J
[1]
The
atmosphere of this case reminded of the words of the Constitutional
Court in
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and Others
[5]
that defined the judicial character of the task conferred upon a
presiding officer in determining whether to grant leave to appeal.
Although having heard the evidence and having made a ruling, the
judge is called upon to consider whether another Court may reach
a
different conclusion. This requires a careful analysis of both the
facts and the law that have supported the judgement a quo
and a
consideration of the possibility that another Court may differ either
in relation to the facts or the law, or both. This
is a task that has
been carried out by High Court judges for many years and it is a
judicial task of some delicacy and expertise.
It should be approached
on the footing of intellectual humility and integrity, neither
over-zealously endorsing the ineluctable
correctness of the decision
that has been reached, nor over-anxiously referring decisions that
are indubitably correct to an appellate
court.
[2]
The right to appeal is, among others,
managed by the application for leave to appeal. It may not be abused,
but the hurdle of an
application for leave to appeal may never become
an obstacle to justice in the post-constitutional era.
Section 17
of
the
Superior Courts Act 10 of 2013
is the law and provides:
‘
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.’
[3]
The interpretation of the Rules and the law
has evolved in case law since 2013.
1.
In numerous cases, the view is held that the threshold for the
granting of leave to appeal
was raised with the induction of the 2013
legislation. The former assessment that authorization for appeal
should be granted if
‘there is a reasonable prospect that
another Court might come to a different conclusion’ is no
longer applicable.
2.
The words in
s 17(1)
that: ‘Leave to appeal may only be given .
. .’ and
s 17(1)
(a)
(i) that: ‘The appeal would
have a reasonable prospect of success’ are peremptory. ‘If
there is a reasonable prospect
of success’ is now that: ‘May
only be given if there would be a reasonable prospect of success.’
A possibility
and discretion were therefore, in the words of the
legislation and consciously so, amended to a mandatory obligatory
requirement
that leave may not be granted if there is not a
reasonable prospect that the appeal will succeed.
3.
It must be a reasonable prospect of success; not that another court
may hold another view.
The court a quo may not allow for one party to
be unnecessarily put through the trauma, costs and delay of an
appeal. In
Four
Wheel Drive v Rattan N.O.
[6]
the following was ruled by Schippers JA:
‘
There
is a further principle that the court a quo seems to have overlooked
— leave to appeal should be granted only when there
is “a
sound, rational basis for the conclusion that there are prospects of
success on appeal”. In the light of its
findings that the
plaintiff failed to prove
locus
standi
or the conclusion of the agreement, I do not think that there was a
reasonable prospect of an appeal to this court succeeding,
or that
there was a compelling reason to hear an appeal. In the result, the
parties were put through the inconvenience and expense
of an appeal
without any merit.’
[7]
[4]
It
is trite that the views of courts may differ but that there will not
be, automatically, interference with the judgment of the
court a quo.
The vital way of thinking of the courts of appeal is that the trial
court experienced the hearing, the conduct of
the parties and their
counsel and the evidence in all its forms; and that interference will
not be a given just for a difference
in opinion by the court sitting
on appeal. The Supreme Court of Appeal reiterated this stance in its
judgment on 31 July 2020 in
AM
and another v MEC Health, Western Cape
:
[8]
‘Such findings are only overturned if there is a clear
misdirection or the trial Court’s findings are clearly
erroneous.’
[9]
[5]
The
final word was spoken in the Supreme Court of Appeal in
Ramakatsa
and Others v African National Congress and Another
[10]
in March 2021:
‘
[10]
Turning the focus to the relevant provisions of the
Superior Courts Act (the
SC Act), leave to appeal may only be granted
where the judges concerned are of the opinion that the appeal would
have a reasonable
prospect of success or there are compelling reasons
which exist why the appeal should be heard such as the interests of
justice.
This Court in
Caratco
,
concerning the provisions of s 17(1)
(a)
(ii)
of the SC Act pointed out that if the court is unpersuaded that there
are prospects of success, it must still enquire into
whether there is
a compelling reason to entertain the appeal. Compelling reason would
of course include an important question of
law or a discreet issue of
public importance that will have an effect on future disputes.
However, this Court correctly added that
"but here too the
merits remain vitally important and are often decisive". I am
mindful of the decisions at High Court
level debating whether the use
of the word "would" as oppose to "could" possibly
means that the threshold for
granting the appeal has been raised.
If
a reasonable prospect of success is established, leave to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be
granted.
The test of reasonable
prospects of success postulates a dispassionate decision based on the
facts and the law that a court of
appeal could reasonably arrive at a
conclusion different to that of the trial court. In other words, the
appellants in this matter
need to convince this Court on proper
grounds that they have prospects of success on appeal. Those
prospects of success must not
be remote, but there must exist a
reasonable chance of succeeding.
A sound
rational basis for the conclusion that there are prospects of success
must be shown to exist
.’
(Accentuation added.)
[6]
Counsel for the applicant in the
application for leave to appeal filed heads of argument the day
before the hearing of the matter
consisting of 104 pages. The matter
was postponed giving the respondents the opportunity to file heads of
argument. They opposed
the application. On 15 November 2024 I ordered
that:
‘
1.
Both applicants’ applications for leave to appeal are granted
in the following terms:
a.
The applicants’ applications for leave to appeal are granted
under case numbers 4542/2023
and 4543/2023 in respect of the first
order made on 4 April 2024 and such leave is granted to the Full
Court of the Free State
Division (Bloemfontein);
b.
the costs of both applications for leave to appeal are costs in the
appeals.
2.
Reasons for judgment may be uplifted from the Registrar of this Court
on Friday 22 November
2024.’
[7]
On the arguments of the applicants as per
paras 38 to 68 of their heads of argument and after extensive oral
arguments, I concluded
that 'a sound, rational basis for the
conclusion that there are prospects of success on appeal' exists. I
will not reiterate the
grounds as it had been comprehensively dealt
with by counsel for the applicants. Since it revolves around the late
filing of papers,
I deemed it apt that the matter be heard by a full
court of this division.
M OPPERMAN J
Appearances
For
applicants (J.J Wolhuter N.O. and others):
L
Meintjes
Instructed
by:
Noordmans
Attorneys Inc.
Bloemfontein
Cases
no.: 4542/2023 & 4543/2023
For
first respondents
(Mtetwa
Investments (Pty) Ltd & Alfred Zakade Mtetwa):
S.J.
Reinders
Instructed
by:
Lovius
Block Attorneys
Bloemfontein
Cases
no.: 4542/2023 & 4543/2023
For
second and third respondents
(Zinvonox
(Pty) Ltd & Johannes Stephanus Olivier):
A
Smith
Instructed
by:
Shardelow
Smith Attorneys Inc.
Bloemfontein
Case
no.: 4543/2023
[1]
The
‘applicants’. Represented by Advocate Meintjies.
[2]
‘
The
company’. Represented by Advocate S Reinders.
[3]
Referred
to as ‘Mr. Mtetwa’. Represented by Advocate S Reinders.
[4]
Second
and third respondents represented by Ms. A Smith. Referred to as
‘Zinvonox’ and ‘Mr. Olivier’.
[5]
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and Others
[2007]
ZACC 3; 2007 (2) SACR 28 (CC).
[6]
Four
Wheel Drive v Rattan N.O.
[2018]
ZASCA 124; 2019 (3) SA 451 (SCA).
[7]
Ibid para 34.
Lewis
JA, Zondi JA, Molemela JA and Mokgohloa AJA concurred in this
judgment.
[8]
AM
and another v MEC Health, Western Cape
[2020]
ZASCA 89.
[9]
Ibid para 8.
[10]
Ramakatsa
and Others v African National Congress and Another
[2021]
ZASCA 31.