REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 115832/23
(1) REPORTABLE : YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
19-03-2025
DATE SIGNATURE
In matter between
MTECH CONSTRUCTIONS (PTY)L TD
and
GOOSEN MEGA ENTERPRISE (PTY)L TD
REGISTRATION NUMBER: 2018/100674 /07 Applicant
Responden t
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the parties/their
legal representatives by e-mail and by uploading it to the electronic file of this
matter on Caselines. The date for hand-down is deemed to be 19 March 2025
JUDGEMENT IN THE APPLICATION FOR LEAVE TO APPEAL
LESUFI AJ
Introduction
[1] This is an application for leave to appeal against the cost order of the judgment
I granted on the 24 January 2025. The leave to appeal is brought in terms of
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Rule 49 of the Uniform Rules read with section 17 of the Superior Act. The
application is opposed by the Respondent.
[2] The parties will be referred as the Applicant and the Respondent. The Applicant
was the Respondent in the main application.
Background facts
[3] The facts pertinent to this app eal are based on the dispute that arose between
the Applicant and the Respondent, regarding a n unpaid amount of money
relating to a construction project. The initial contract was worth R 2,704,235.65,
and R 2,627,969.84 has already been paid without any issues. However
according to the Respondent there was an amount still due. Upon the Applicant’s
failure to pay the amoun t due, the Respondent, the Respondent issued a Notice
in terms of section 345 with the intention to liquidate as per their letter dated 28th
September 2023.
[4] The Respondent claimed the Applicant owes R 76,26 5.81, but the Applicant
disputed this amount a nd said the correct amount is R 75,686.56. The Applicant
offered to pay the disputed amount into their attorney's trust account pending the
outcome of the litigation, but the Respondent didn't accept this offer.
[5] The main issue was a disagreement over R 579.25, which stems from the
quantity of building materials used during the construction project. This issue was
never referred to a construction expert for resolution.
Applicant’s grounds of Appeal
[6] The Applicant contents that the court erred in making no order as to costs in the
following circumstances:
6.1 It is trite that the general rule is that costs follow the result.
6.2 that the Respondents initiated the liquidation application on an urgent
basis whereas the application w as not urgent.
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6.3 the Applicant had at all times contended that the correct amount was
R75 ,686.56 and not R76,265.81 as claimed by the Respondent.
6.4 As early as 28 September 2023 the Applicant’s Representative had
requested an invoice from the Respond ent in the correct amount.
6.5 the Applicant only requested the invoice only to correct the amount.
6.6 the Respondent declined to do so and initiated liquidation application.
6.7 the Respondent’s papers contain scurrilous and unfounded accusations
of fraud against the Director of the Applicant and the and Applicant itself .
6.9 On the 12 December 2023 the Applicant again tendered payment of R
75,686.56 against production of a corrected invoice, pointed out that the
difference between amount claimed by the Respondent said was due
amounted to R 579.25 and offered (with prejudice) t hat both parties paid
their own costs upon withdrawal of the liquidation application. This offer
was never accepted.
6.10 On the 24 April 2024 Applicant confirmed that its attorneys held R75,
686.56in Trust and again offered (with prejudice0 that if an in voice fir
R75, 686.56 was issued then payment would be made and that both
parties would pay own costs. Therefore, the court a quo misdirected
itself.
Respondent’s opposition to the Application for leave to appeal
[7] The application for leave to appeal is vehemently and vigorously opposed the
application. The basis for opposing being that it is clear that there was no
misdirection by the court a quo . The Respondent is of the view that there is no
misdirection on the following grounds:
7. 1 Even though it is common in law that cost follow the result, the court a
quo clearly stated in the judgement the reasoning why the court diverted
from the norm.
7.2 The court a quo exercised its discretion as far as costs are concerned.
7.3 The amount t o date is still outstanding despite a demand for payment
being made by the Respondent to the Applicant.
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7.4 The Respondent resorted to the liquidations proceedings out of
frustration.
7.5 That most of the issues raised were ventilated in the motion proceedings
and were dealt with.
7.6 The amount owed is still kept by the Applicant in the Trust account.
7.7 It was further submitted that the matter was never brought to court on an
urgent basis as alleged.
7.8 The court a quo balanced the scales of justice by not awarding costs.
Issues for determination
[8] Whether this appeal has prospects of success.
Applicable principles/tests to the adjudication of an application for leave to appeal
and analysis of the ground of appeal
[9] Rule 49 of the Uniform Rules of Court dictates the form and process of an
application for leave to appeal and the substantive law pertaini ng thereto is to be
found in section 17 of the Superior Courts Act 10 of 2013 . The latter Act raised
the threshold for the granting of leave to appeal, so that leave may now only be
granted if there is a reasonable prospect that the appeal will succeed. The
possibility of another court holding a different view no longer forms part of the
test. There must be a sound, rational basis for the conclusion that there are
prospects of success on appeal. The interpretation of the Rules and the Law has
evolved in case law since 2013. In numerous cases, the view is held that the
threshold for the granting of leave to appeal was raised with the inauguration of
the 2013 legislation ( Superior Courts Act 10 of 2013 ). 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 .
[9] The words in section 17(1) that: “Leave to appeal may only be given…” and
section 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
poss ibility and discretion were therefore, in the words of the legislation and
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consciously so, amended to a mandatory obligatory requirement that leave may
not be granted if there is no reasonable prospect that the appeal will succeed. It
must be a reasonable prospect of success; not that another Court may hold
another view.
[10] The c ourt a quo may not allow for one party to be unnecessarily put through the
trauma and costs and delay of an appeal. In Four Wheel Drive v Rattan N.O.1the
following was ruled by Schippers JA (Lewis JA, Zondi JA, Molemela JA and
Mokgohloa AJA concurring):
“[34] There is a further principle that the court a quo seems to have overl ooked — 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 a greement, I do not think that there
was a reasonable prospect of an appeal to this court succeeding 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 mer it.”2
Application
[11] It is indeed so that costs follow the successful party however this norm is not
binding on courts as costs ar e discretionary. I a m alive to the fact that if I have to
exercise my discretion , I have to do so judiciously.
[12] The basic rule of costs overrides the general rule that costs should follow suit.
This is aptly explained in Graphic Laminates CC v Albar Distributors CC ,3 the
court held that:
“It is trite that liability for costs in civil proceedings is a separate issue that is governed
by its own criteria. The fundamental principle is that liability for costs is in the discretion
of the court that is called upon to adjudicate the merits of the issues between the parties
(See: Kruger Bros & Wasserman v Ruskin 1918 AD 63 at 69) on the basis of the facts
and circumstances of each individual case (See: Cronje v Pelser 1967(2) SA 589 (A) at
593). In the absence of express statutory provisions to the contrary, the general rule that
1 2019 (3) SA 451 (SCA).
2 Id at para 34.
3 2005 (5) SA 409 (C).
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costs follow the result is subservient to that fundamental principle (See eg: Unimark
Distribution (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 2003(1) SA 204 (T) at 215 E – F).
It appears to me to be axiomatic that, if the question of costs has been fully ventilated,
and a court does not say anything about liability for costs or specifically states that there
will be no order as to costs, each p arty is liable for the payment of its own costs
(See: G.B. van Zyl: The Judicial Practice of South Africa (Volume II) 894).”4
[13] This position was confirmed in Ferreira v Levin .5in a judgment on costs given
separately from the judg ment on the merits, the Court pointed out that the
courts have over the years, developed a flexible approach to costs which
proceeds from two basic principles, the first being that the award of costs,
unless otherwise enacted, is in the discretion of the p residing judicial officer,
and the second that the successful party should, as a general principle, have
his or her costs.
[14] In Fighters v Speaker of the National Assembly6 the discretion was described
as follows:
“Further, an analysis of some of the de cided authorities in dealing with proceedings of
this nature demonstrates that the more prevalent approach is that the successful party
is entitled to its costs, with the court always retaining the discretion to make an order
that seems just and equitable, considering the position of the party against whom any
such costs order is levied. At the end of the day, several factors must be considered
when a cost award i s issued in such circumstances.”
[15] Based on the authority above, the instances in which lea ve to appeal is granted
against costs orders only are rare.7
[16] The thre shold that the Applicant faces does not end here. Section 16(2)(a) of
the Act requires that “exceptional circumstances” must be established for the
Applicant to succeed in an application for leave to appeal on the issue of costs.
4Id at para 11.
5 [1995] ZACC 2 ; 1996 (4) BCLR 441 (CC); 1996 (2) SA 62 1 (CC).
6 [2024] ZAWCHC 160
7 Tebeila Institute of Leadership, Education, Governance and Training v Limpopo College of Nursing and Another
2015 (4) BCLR 396 (CC) at para 13.
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There are no exceptional circumstances that were raised by the Applicant in
this matter.
[17] Lastly, I extensively considered the Heads of Arguments by the Applicant and
reply by the Respondent, I am of the view that both parties are at fault
considering the circumstances of this case. The Respondent instituted
liquidation proceedings without any merit. The applicant also prompted the
Respondent to institute the liquidation proceedings. The Appli cant had an
opportunity to at the very least pay the undisputed amount.
[18] I am of the view that the application for leave to appeal does not carry any
weight as I exercised my discretion judiciously.
[19] I therefor make the following order:
19.1 The application for leave to appeal is dismissed.
19.2 The Appl icant to pay costs on party and party scale
_______ ________
B LESUFI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Applicant: Adv Mark Meyerrowitz
Instructed by: Mr Greg Harrison of Harrisons Inc
For the Respondent: Advocate W Venter
Instructed by: Uys Inc
Date of Hearing 14 March 2025
Date of Judgment 19 March 2025
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