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[2024] ZAECMKHC 139
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Enoch Mgijima Local Municipality v Z.F obo Y.F (Leave to Appeal) (3615/2023 ; 3616/2023) [2024] ZAECMKHC 139 (21 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: 3615/2023
Reportable:
Yes
In
the matter between:
ENOCH
MGIJIMA LOCAL MUNICIPALITY
Applicant
and
Z[...]
F[...] obo Y[...] A[...]
F[...]
Respondent
and
CASE
NO: 3616/2023
ENOCH
MGIJIMA LOCAL MUNICIPALITY
Applicant
and
MXOLISI
QUINTON
MASAYIMANI
Respondent
JUDGMENT
ON APPLICATION FOR
LEAVE
TO APPEAL
BRODY
AJ:
[1]
This is an opposed application for leave to appeal to the full court
of this division
against the judgment of this court granting
condonation for the applicant’s failure to serve the notices
contemplated in
section 3(1)(a) of the Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002 (“the
Act”)
within the period laid down in section 3(2)(a) of the
Act, and costs.
[2]
The two matters that initially came before this court were
consolidated in one judgment
as both matters were applications for
condonation in terms of section 3(4) of the Act, involved the same
defendant, the same legal
teams, and very similar facts.
[3]
As in the original judgment, the facts in the above matters are
unique in that Ms
F[...]’s minor child was electrocuted at Aloe
T, Squatter Camp, Komani and within two days of that electrocution,
Mr Masayimani,
was electrocuted, apparently in the same place. Both
electrocutions took place within the jurisdiction of the defendant
municipality
and both the electrocutions had very severe consequences
for both the minor child and Mr Masayimani, who lost the use of his
left
arm. In both the matters that came before this court, for
condonation, the defendant municipality did not react to the initial
electrocution, despite it being reported to a Ward Councillor and the
South African Police Services, and this then resulted in the
second
electrocution.
[4]
The defendant municipality served and filed an extensive application
for leave to
appeal in which numerous grounds of appeal were raised,
(and although there is much repetition), the essential complaints
were
that this court had:
[4.1]
erred in placing an onus on the municipality to plead facts which
could result in a conclusion that
the plaintiffs were aware of their
right to claim as early as the date when the causes of action arose;
[4.2]
erred in not dismissing the applications on the basis that the
plaintiffs had in their possession
the minimum facts for prescription
to run on the date of the electrocutions;
[4.3]
erred in finding that the claims had in fact prescribed;
[4.4]
erred in finding that the municipality had failed to plead any facts
showing that the plaintiffs were
aware of their right to claim, (and
on a particular date);
[4.5]
erred in failing to distinguish the facts and legal principles in RAF
and another vs Mdeyide 2011(2)
SA 26 (CC);
[4.6]
erred and misdirected itself in placing reliance on the judgment of
Dike vs South African Police Service
(2023) ZAECBHC 34;
[4.7]
erred in finding that the trial court should finally determine
whether the matter has prescribed;
[4.8]
erred in granting condonation for the late filing of the notices due
to the plaintiffs’ failure
to provide a full and complete
explanation for the delay;
[4.9]
erred in granting condonation in the absence of a
prima facie
case against the municipality;
[4.10] erred in
finding that the municipality had not been “unduly prejudiced”
by the late filing of the notice
as the municipality was unable to
secure essential records.
[5]
Ms Da Silva with Ms Booysen acted on behalf of the applicant,
municipality and Mr
Madokwe acted on behalf of the respondents
(plaintiffs in the main actions).
[6]
Ms Da Silva in the main referred to the Constitutional Court matter
of Mtokonya vs
Minister of Police
(2017) ZACC 33
; 2017(11) BCLR 1443
(CC); 2018(5) SA 22 (CC) in relation to the knowledge of identity of
a debtor and the facts giving rise to
a debt in terms of
section
12(3)
of the
Prescription Act 68 of 1969
.
[7]
In the Mtokonya judgment the matter involved the unlawful arrest and
detention by
members of the South African Police Services and
involved the interpretation of
section 12(3)
of the
Prescription Act,
in
action proceedings, and after the parties had submitted an agreed
statement in terms of
rule 33.
This judgment is instructive in the
manner in which prescription is to be analysed and the court stated
the following at paragraph
[33] “… It is that, if the
reason the creditor does not know of the existence of the debt is
that the creditor has
failed to acquire that knowledge by exercising
reasonable care when he otherwise could have acquired it by
exercising reasonable
care, then the debt will have become due and
prescription will have commenced running.”
[8]
At paragraph [37] the court stated:
“
The question that
arises is whether knowledge of the conduct of the debtor is wrongful
and actionable is knowledge of a fact. This
is important because the
knowledge that
section 12(3)
requires a creditor to have is
“knowledge of facts from which the debt arises”. It
refers to the ”facts from
which the debt arises.” It does
not require knowledge of legal opinions or legal conclusions or the
availability in law of
a remedy.”
[9]
The court went further to state that,
“
[44] Whether the
police’s conduct against the applicant was wrongful and
actionable is not a matter capable of proof. In my
view, therefore,
what the applicant said he did not know about the conduct of the
police, namely, whether their conduct against
him was wrongful and
actionable was not a fact and, therefore, falls outside of
section
12(3).
It is rather a conclusion of law. As I point out elsewhere in
this judgment, the second judgment accepts that what the applicant
says he did not know is a legal conclusion and not a fact. Once the
second judgment has reached that conclusion, that should have
been
the end of the matter because that is the only question that the
court is called upon to decide in determining the appeal
before us.
[45]
Knowledge that the conduct of the debtor is wrongful and actionable
is knowledge of a legal conclusion
and is not knowledge of a fact.
The second judgment accepts that this is so. Therefore, such
knowledge falls outside the phrase
“knowledge of facts from
which the debt arises” in
section 12(3).
The facts from which a
debt arises are the facts of the incident or transaction in question
which, if proved, would mean that in
law the debtor is liable to the
creditor.”
[10]
The example given by the court is also instructive:
“
[53]
In January 2006 Mr Shange was 18 years, 5 months old when, after he
had referred the matter to the office
of the Public Protector on
advice of his mother’s friend, an advocate in that office
informed him that he had a claim against
the Member of the Executive
Council for Education, Kwa Zulu-Natal (MEC). On 2 February 2006 Mr
Shange’s attorney dispatched
to the National Minister of
Education (instead of to the MEC for Education, Kwa Zulu-Natal) a
notice in terms of
section 3
of the Institution of Legal Proceedings
against certain Organs of State Act (Act). That was a notice
prescribed by section 3(1)(a)
of the Act informing the addressee of
Mr Shange’s intention to institute legal proceedings. Mr Shange
instituted action against
the MEC and served summons on the MEC on 3
December 2008. He later gave the MEC the notice required by section
3(1)(a) of the Act
and, because this was done late, applied for
condonation in terms of section 3(4)(a) of the Act. Section 3(4)(b)
of the Act provided
that the court could grant condonation for that
failure if it was satisfied, among other things, that the “debt”
has
not been extinguished by prescription.”
[54]
The MEC delivered a special plea in terms of which he sought the
dismissal of Mr Shange’s
claim for non-compliance with section
3(1)(a) and 3(2)(a) of the Act. In considering whether to grant Mr
Shange condonation, the
court had to consider whether his claim had
not prescribed. The Supreme Court of Appeal took the view that there
were two joint
debtors in that case, namely, the teacher and the MEC.
The latter was said to be a joint debtor on the basis that she was
vicariously
liable for the delict committed by the teacher as it was
committed within the course and scope of his employment. The Supreme
Court
of Appeal concluded that, on the facts of the case, Mr Shange
did not know the MEC’s identity as his joint debtor until he
was so informed by the advocate in the Public Protector’s
office. The court then held that, for this reason, Mr Shange did
not
have the knowledge contemplated in
section 12(3)
of the
Prescription
Act in
relation to the identity of the MEC as a joint debtor and,
therefore, his claim against the MEC had not prescribed. He said that
this was so because the prescription period had to be calculated from
January 2006 when an advocate in the office of the Public
Protector
informed Mr Shange that he had a claim against the MEC.”
[10]
The aforesaid example given by the Constitutional Court in Mtokonya
is substantially the same
as the facts in this matter. Both
plaintiffs were electrocuted in circumstances where the debtor may
well have been Eskom, the
municipality, or a private individual. The
identity of the debtor only became known to both the plaintiffs when
they were advised
by attorneys that the municipality was in all
probability liable and that it should be sued for damages.
[11]
The court further emphasised that it was bound by the issues raised
in the
rule 33
statement of the parties and could not go beyond that
in its decision. The question raised for the court was a very limited
one
and this is confirmed at paragraph [72], where the court stated
that:
“…
However,
given that the parties chose to put that contention before the court
as the contention that the court would have to uphold
were rejected
to decide whether the claim had prescribed, the court is not entitled
to decide the appeal on the basis of any other
question. That
includes the question whether or not the respondent has shown that
the applicant had knowledge of the identity of
the Minister of Police
as a debtor or co-debtor and the question whether the applicant had
knowledge of the debt. Those were not
issues between the parties in
terms of the
rule 33
statement.”
[12]
This was further confirmed when the court stated at [75]… “In
the present case the
court was never asked to decide whether the
applicant had knowledge that the Minister was a co-debtor and whether
that lack of
knowledge, if that be the case, had prevented
prescription from running.”
[13]
The court, in fact, indicated that it will be highly prejudicial to
the respondent if the court
were to go beyond the
rule 33
statement.
[14]
This court is of the view that the Mtokonya judgment is
distinguishable from the present matter
as it involved the arrest and
detention of the plaintiff by members of the South African Police
Services and the Constitutional
Court was required to make a decision
in regard to prescription in terms of very limited agreed facts as
set out by the parties’
rule 33
statement.
[15]
Ms Da Silva also referred this court to the matter of Gericke vs Sack
1978(1) SA 821 AD in support
of the contention that all that is
required is for a plaintiff to have knowledge of the facts which
support a claim. In Gericke,
Diemont JA emphasised the following:
“
The critical issue
was the identity of respondent – when did appellant acquire
knowledge or when she deemed to have acquired
knowledge of the
identity of the person who caused her injuries.”
[16]
In regard to the onus, where prescription is raised, the court stated
the following:
“
It was the
respondent who challenged the appellant on the issue that the claim
for damaged was prescribed – this he did by
way of a special
plea 5 months after the plea on the merits had been filed. The
onus
was clearly on the respondent to establish this defence. He could not
succeed if he could not prove both the date of the inception
and the
date of the completion of the period of prescription… However,
the Act specifically provides that prescription begins
to run only
when the debt becomes due and that it is not deemed to become due
until the creditor has knowledge both of the identity
of the debtor
and of the facts from which the debt arises. It follows that if the
debtor is to succeed in proving the date on which
prescription begins
to run he must allege and prove that the creditor had the requisite
knowledge on that date.”
[17]
Both the plaintiffs in the present matter, although severely injured,
had to undergo hospitalisation,
and both have extensive injuries that
will require expert evidence during the trial. The extent of these
injuries, and the exact
nature of the claim, and quantum involved,
would certainly have occurred some time after the initial
electrocutions. In addition,
the true identity of the debtor, is also
a factor in the applications for condonation.
[18]
In Gericke, the court went further to state the following:
“
The Act provides
in express terms that prescription does not begin to run “until
the creditor has knowledge of the identity
of the debtor”, not
that prescription will begin to run as soon as the creditor has
knowledge of facts or information from
which it will be possible for
him to deduce or discover the identity of the debtor.”
[19]
The court went further to state, “Regard will have to be had to
the particular circumstances
of each case, but for practical purposes
it seems to me that there should be sufficient information for the
process-server to be
able to identity the debtor by name and address.
The conclusion to which I
accordingly come is that even though the
onus
on the respondent was a light one and he failed to prove that the
appellant had knowledge of his identity on 13 or 14 February
1971.”
[20]
As indicated in this court’s judgment, no detail was given by
the municipality as to the
date when the plaintiffs acquired
knowledge of the identity of the “debtor” and exactly
when prescription began to
run. In both matters the date of
electrocution was simply pleaded as the date when prescription began
to run. This is distinguishable
from all the authorities where
litigants are arrested and detained by members of the Police
Services, who are all clearly employed
by the Minister of Police.
[21]
Reference was also made by both counsel to the matter of Madinda vs
Minister of Safety &
Security, Republic of South Africa
(2008)
ZASCA 34
;
(2008) 3 All SA 143
(SCA); 2008(4) SA 312 (SCA), which was
also dealt with in the main judgment of this matter.
[22]
In Madinda, the appellant too was an unemployed woman, aged 32 years,
and who applied to the
High Court for an order in terms of section
3(4) and her claim vested against the Minister of Safety &
Security. In regard
to section 3(4)(b) Heher JJA stated the following
at paragraph [8]:
“
The phrase “if
[the court] is satisfied” in section 3(4)(b) has long been
recognised as setting a standard which is
not proof on a balance of
probabilities. Rather it is the overall impression made on a court
which brings a fair mind to the facts
set up by the parties. CEG Die
Afrikaanse Pers Beperk vs NESCR 1948(2) SA 295(C) at 297. I see no
reason to place a stricter construction
on it in the present
context.”
It
is precisely this test that was applied by this court in the issue of
condonation.
[23]
“Good cause” was also dealt with in the judgment at
paragraph [12] as follows:
“
Good cause for the
delay” is not simply a mechanical matter of cause and effect.
The court must decide whether the applicant
has produced acceptable
reasons for nullifying, in whole, or at least substantially, any
culpability on his or her part which attaches
to the delay in serving
the notice timeously. Strong merits may mitigate fault; No merits may
render mitigation pointless. There
are two main elements that play in
s4(b), viz the subject’s right to have the merits of his case
tried by a court of law
and the right of an Organ of State not to be
unduly prejudiced by delay beyond the statutory prescribed limit for
the giving of
notice. Sub-paragraph (iii) calls for the court to be
satisfied as to the latter. Logically, sub-paragraph (ii) is
directed, at
least in part, to whether the subject should be denied a
trial on the merits. If it were not so, consideration of prospects of
success could be entirely excluded from the equation on the ground
that the failure to satisfy the court of the existence of good
cause
precluded the court from exercising its discretion to condone. That
would require an unbalanced approach to the two elements
and could
hardly favour the interests of justice. Moreover, what can be
achieved by putting the court to the task of exercising
a discretion
to condone if there is no prospect of success? In addition, that the
merits have shown to be strong or weak may colour
an applicant’s
explanation for conduct which bears on the delay: an applicant with
an overwhelming case is hardly likely
to be careless in pursuing his
or her interests, while one with little hope of success can easily be
understood to drag his or
her heels. As I interpret the requirement
of good cause for the delay, the prospects of success are a relevant
consideration. The
learned Judge
a quo
misdirected himself in ignoring them.”
[24]
There can be little doubt in this matter that the prospects of
success are good and especially
in regard to Mr Masayimani’s
claim where he was electrocuted, at the same place, two days later,
without any prevention measures,
or reaction, on the part of the
municipality.
[25]
In regard to prejudice the court stated the following at paragraph
[15]:
“
Absence of
prejudice has often been regarded as an element of good cause in the
context of earlier legislation. It was, no doubt,
also an element in
determining whether interests of justice lay in terms of s57 of Act
68 of 1995. But in this Act the legislature
has deemed it appropriate
to treat absence of “unreasonable” prejudice as a
specific factor of which an applicant must
satisfy the court. An
identification of separate requirements of good cause and absence of
“unreasonable” prejudice
may be intended to emphasise the
need to give due weight to both the individuals’ right of
access to justice and the protection
of State interest in receiving
timeous and adequate notice.”
[26]
The pleaded case by the municipality in regard to both cases was a
general suggestion that memories
fade and that documents are
unavailable. This court was unpersuaded by the alleged prejudice and
concluded that there was no “unreasonable”
prejudice
inter alia
for the following reasons:
[26.1] Ms F[...]
reported the matter to a Ward Councillor of the municipality;
[26.2] Ms F[...]
reported the matter to the South African Police Services and gave a
statement to the police officers on duty;
and
[26.3] Mr
Masayimani’s electrocution took place two days after Ms
F[...]’s incident, and in the same place.
[27]
Nowhere did the municipality plead, or even suggest, that witnesses
were unavailable as they
had relocated, gone abroad, or had died.
Nowhere was it suggested that documents were missing because of a
fire, or any other peril.
It is inconceivable that in circumstances
where a serious injury is experienced by a minor child, and then by
an adult, (who then
looses the use of his arm), two days apart, that
there is no documentation or “poor memories” of the
incidents.
[28]
In Madinda the plaintiff’s actions were described as follows:
“
18.2 A
factor which is to be considered is that she used the first available
opportunity to assert her determination
to see justice done when, on
the return home on the night of 11 September 2004 and despite her
parlous physical condition, she
wrote on a piece of paper that the
police had assaulted her, enabling her sister to lay a complaint on
her behalf.”
[29]
Ms F[...] acted with speed also and immediately saw a Ward Councillor
and reported the matter
to the South Africa Police Services, in her
pursuit of justice.
[30]
In relation to the argument that the plaintiff reasonably believed
that the South African Police
Services would obtain justice for her,
the court said the following in Madinda:
“
Appearance,
inexperience, naivete, and simple lack of intelligence, individually
or in any accommodation, it seems to me, conduce
to a reasonable
belief that, once a complaint has been laid, the State, with the
resources at its disposal, and as what she described
in her reply as
“the primary agent for the protection and enforcement of ….
legal rights” will follow it up;
SF Mugwena’s case,
above, at 155H – 156E. Indeed there is a provision in the
Criminal Procedure Act (s300(1) which
enables a court to make a
compensatory order having the effect of a civil judgment, so that her
belief finds some basis in law
as well.
18.4
The appellant was unaware of the requirement of notice until she
approached an attorney during May 2005,
some two months after the
statutory period expired. She was first led to seek help because she
saw no apparent progress in the
investigation of her claim. It is
significant that her initial reaction was to visit her local police
station to find out what
was happening. There she was advised that
the police only investigate complaints with the view to criminal
prosecution and that
if she wanted to claim damages she should
consult an attorney, immediately. She followed that advice. The
overall impression that
her affidavit creates is that, despite a long
initial period of physical debility, she at all times harboured a
genuine grievance
which she pursued according to a limited
comprehension of what was necessary in order to enforce her legal
rights. The fact that,
from her final discharge from hospital in
December 2004 until early May 2005, she waited in ill-founded
anticipation and inactivity
for some progress in the matter, even if
it be a matter for mild disapprobation, it is not sufficient to
negate her genuine intention
to pursue her claim.”
[31]
There can be no doubt that Ms F[...] sought justice for her minor
child, and had a genuine intention
to pursue her claim to finality.
Unlike the plaintiff in the Madinda matter, the South African Police
Services never advised her
to seek assistance from an attorney to
prosecute her claim civilly.
[32]
This court had no doubt that the prospects of success and explanation
for the delays were both
in favour of the plaintiffs. Both plaintiffs
consulted attorneys as soon as could reasonably be expected, given
their misconception,
and these in turn reacted expeditiously. A
further short delay was explained by Ms F[...]’s attorney as a
need to obtain
hospital records in respect of the minor child’s
injuries. This is fully understandable as the amount of the claim is
always
relevant to the extent of the injuries.
[33]
In Madinda the court further stated the following in regard to
““unreasonable””
prejudice:
“
The approach to
the existence of ““unreasonable”” prejudice
(not simply any level of prejudice, an aspect
which the judgment of
the court
a quo
blurs)
requires a common sense analysis of the facts, bearing in mind that
whether the grounds of prejudice exist often lies peculiarly
within
the knowledge of the respondent. Although the onus is on an applicant
to bring an application within the terms of the statute,
the court
should be slow to assume prejudice for which the respondent itself
does not lay a basis.”
[34]
As indicated above, this court was not satisfied that a basis had
been made by the municipality
for “unreasonable”
prejudice.
[35]
Ms Da Silva also referred this court to the matter of Minister of
Police vs Zamani (2021) ZAECBHC1.
My brother, Mbenenge JP found in
that matter that there was not a hard and fast rule relating to when
prescription starts to run,
and especially in matters against the
Minister of Police.
[36]
Finally, Ms Da Silva referred to the Minister of Police vs Dike
matter, (2023) ZAECBHC34 and
argued that the decision by my sister,
Norman J, was clearly “wrong”.
[37]
Mr Madokwe handed in the judgment of my sister Norman J, relating to
the application for leave
to appeal where the application was
dismissed with costs. It was common cause in that matter that the
Supreme Court of Appeal declined
to grant leave to appeal against my
sister, Norman J’s refusal to grant leave.
[38]
In the Dike judgment my sister, Norman J, stated the following, which
is highly relevant to this
application for leave to appeal:
“
[10]
Courts are obliged when interpreting any legislation to promote the
spirit, the purpose and the objects of
the Bill of Rights. The
Prescription Act is
no exception. In McCleod vs Kweyiya it was stated
that:
“
[13]
It is the negligence, and not an innocent inaction that
s12(3)
of the
Prescription Act seeks
to prevent and courts must consider what is
reasonable with reference to the particular circumstances in which
the plaintiff found
himself or herself. In MEC for Education, Kwa
Zulu-Natal vs Shange 2012(5) SA 313 (SCA)….”
[11]
In Minister of Police vs Zamani the court did not depart from the
established principles when
it determined the issue of prescription.
This court was not determining prescription but was dealing with it
as a factor to be
considered in dealing with condonation. There was
accordingly no reason to distinguish it.
[12]
I had referred in the main judgment to the decision in Gericke vs
Sack, where the Appellate Division
stated:
“
It follows that if
the debtor is to succeed in proving the date on which prescription
begins to run he must allege and prove that
the creditor had the
requisite knowledge on that date. As aforementioned no such
allegations were made in the answering affidavit”.
[39]
Ms Da Silva also made reference to the matter of Minister of Public
Works vs Roux Property Fund
(Pty) Limited
(2020) ZASCA 119
where the
issue of non-compliance with
section 3(1)
also arose. The court in
Minister of Public Works vs Roux Property Fund also made reference to
the Madinda judgment and emphasised
that for purposes of condonation
the court did not require proof on a balance of probabilities but
“the overall impression
made on a court which brings a fair
mind to the facts set up by the party”.
[40]
That court also emphasised that prescription is a “mixed
question of fact and law”.
“It is not a matter of
impression, unlike the questions of good cause and prejudice in the
other sub-sections. The court
must therefore be satisfied that the
claim has not prescribed in order to grant condonation.”
[41]
In this matter the court was not satisfied that the claim had
prescribed, on the basis of the
papers and therefore that this issue
could be revisited by the trial court, after hearing evidence.
[42]
The illustration of how the municipality dealt with the issue of the
identity of the respondent
is to be found in the papers where Ms
F[...] stated the following in her particulars of claim:
“
24.
I must mention that, before the interaction with Mr Tyatyeka, my
mother and I did not consult any attorney
in respect of the civil
claim. We did not know that we have a civil claim and a right to sue
someone pursuant to my son’s
electrocution. Furthermore, before
the consultation with Mr Tyatyeka, I did not know the identity of the
respondent.”
[43]
In the municipality’s plea this issue is dealt with as follows:
“
21.1
The defendant denies that it was responsible for the installation of
electricity, maintenance, upkeep and appropriate
regular inspections
of the area in question (that of the squatter camp, Queenstown),
either as alleged or at all.”
[44]
Although further amplification is given to that denial, the general
gist of the denial is that
it was not the responsibility of the
municipality to maintain the electricity network and nor was it aware
of the “illegal
connections”. In contrast to this
pleading, the answering affidavit to the application for condonation
by the municipality,
states
inter alia
the following:
“
72.8
The applicant was at all times aware that the respondent was
allegedly responsible for the electrical supply within
its district.
Thus, the applicant ought reasonably to have been aware that any
claim for her injuries and that of her child laid
against the
respondent.”
[45]
Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
provides that
leave to appeal may only be given where the Judge concerned is of the
opinion that the appeal has a reasonable prospect
of success or there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter
under consideration.
[46]
In Valley of the Kings Thaba Motswere (Pty) Ltd and another vs AL
Mayya International (2016)
ZAECGHC137 my brother Smith stated the
following:
“
[4]
There can be little doubt that the use of the word “would”
in
section 17(1)(a)(i)
of the
Superior Courts Act implies
that the
test for leave to appeal is now more onerous. The intention clearly
being to avoid our courts of appeal being flooded
with frivolous
appeals that are doomed to fail. I am, however, of the respectful
view that the “measure of certainty”
standard propounded
by the learned Judge in Mont Chevaux Trust may be placing the bar to
high. It would, in my respectful view,
be unreasonably onerous to
require an applicant for leave to appeal to convince a Judge –
who invariably would have provided
extensive reasons for his or her
findings and conclusions – that there is a “measure of
certainty” that another
court will upset those findings. It
seems to me that a contextual construction of the phrase “reasonable
prospect of success”
still requires of the Judge, whose
judgment is sought to be appealed against, to consider, objectably
and dispassionately, whether
there are reasonable prospects that
another court may well find merit in arguments advanced by the losing
party. …”
[47]
This court is not persuaded that it misdirected itself by granting
condonation to both Ms F[...]
and Mr Masyamani, and especially in
circumstances where the issue of prescription is one factor, amongst
many others.
[48]
There are accordingly no reasonable prospects of success and there is
no other compelling reason
to grant leave to appeal. The applicant
has failed to meet the threshold set out in
section 17
of the Act,
and accordingly the application for leave must fail.
[49]
In the result, the following order is made:
[49.1] The
application for leave to appeal is dismissed.
[49.2] The
respondent (defendant in the main actions) is ordered to pay the
applicant’s (plaintiffs in the main actions)
costs on scale B
as contemplated by rule 69(7).
B
B BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the APPLICANT
: ADV DA
SILVA SC with ADV BOOYSEN
Instructed
by
: PHILLIP
& PARTNERS ATTORNEYS
OFFICE NO.: 6, 7 & 8
ORIENT MALL
CURRIE STREET
QUIGNEY
EAST LONDON
TEL: 043 722 1213
EMAIL:
sabata@pandmattorneys.co.za
c/o
:
YOKWANA
ATTORNEYS
10 NEW STREET
MAKHANDA
REF: MR PHILLIP/MR
YOKWANA
For
the RESPONDENT
: ADV
MADOKWE
Instructed
by
: N.
TYATYEKA ATTORNEYS
SHORT MILL HOUSE
VICTORIA CRESCENT
THE QUARY OFFICE PARK
BAYSVILLE
EAST LONDON
CELL: 082 719 8794
REF: NIT/QTN/CIVIL 2020 –
Z. F[...]
c/o
:
MSITSHANA ATTORNEYS
72 HILL STREET
MAKHANDA
EMAIL:
msitshanaincorporated@telkomsa.net
TEL: 046 330 9103
FAX: 086 460 9790
Matter
heard on
: 15
November 2024
Judgment
delivered on :
21 November
2024