IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 2024 - 022707
In the matter between –
YAFA HOLDINGS (PTY) LTD t/a APPLICANT
FUEL SOLUTIONS
AND
MERCHANT WEST (PTY) LIMITED 1ST RESPONDENT
OPTICAL MEDIAWORX LOGISTICS (PTY) LTD 2ND RESPONDENT
NGO NIDZASHE FERRIS RUTSITO 3RD RESPONDENT
RAIN FORESTS OF SOUTH AFRICA TRADING 4TH RESPONDENT
(PTY) LTD
____________________________________________________________________ ____________
JUDGMENT
MOORCROFT AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
DATE SIGNATURE
31/3/2025
Summary
Application for leave to appeal – section 17(1)(a)(i) and (ii) of the Superior Courts Act - reasonable
prospect of success or some other compelling reason why the appeal should be heard
No exceptional circumstances meriting leave to appeal on costs only – section 16(2)(a)(ii) and (ii) of
the Superior Courts Act
No reasonable prospect of success identified and no compelling circumstances found to exist
Order
[1] In this matter I make the following order:
1. The late filing of the application for leave to appeal is condoned;
2. The application for leave to appeal is dismissed;
3. The applicant is ordered to pay the costs of the application on scale C.
[2] The reasons for the order follow below.
Introduction
[3] This is an application for leave to appeal against a decision handed down by me on 26 March
2024 in the Urgent Court. The application was filed late by a few days and the applicant’s condonation
application is not opposed by the first respondent. The late filing did not occasion any prejudice and is
condoned.
[4] The order I made read as follows:
1. Having read the papers, considered the matter and heard counsel, the following
order is made :
2. The application by the applicant, YAFA HOLDINGS (PTY) LTD t/a FUEL
SOLUTIONS brought under the above case number is removed from the
urgent court roll of 25 March 2024;
3. The applicant YAFA HOLDINGS (PTY) LTD t/a FUEL SOLUTIONS is directed to
pay the costs of the first respondent including the costs of appearance on 26
March 2024
[5] Matters in the urgent court are automatically set down and the matter appeared on the roll of the
urgent court published on 22 March 2024.
[6] An initial application between Merchant West (Pty) L td and three respondents ( Optical Mediaworx
Logistics (Pty) Ltd, Ngonidzashe Ferris Rutsito and Rain Forests of South Africa Trading (Pty) Ltd) was
first uploaded to CaseLines on 29 February 2024 . The present applicant brought an application for
leave to intervene that was uploaded on 15 March 2024. The present first respondent’s answering
affidavit to the intervention application was uploaded on the same day. This judgment deals with the
intervention application only.
[7] The applicant did not file a replying affidavit but on 18 March 2024 it gave notice that it was
withdrawing the urgent application for leave to intervene that was on the roll for 26 March 2024. The
first respondent replied on the 18th, indicating that the notice was not accompanied by a tender for
costs and that it was awaiting such a tender.
[8] When the matter was called on the 26th there was initially no appearance for the applicant.
Counsel for the first respondent appeared and advised that the application had been withdrawn without
a tender for costs, and that the notice was filed out of time as the matter was already on the roll.
[9] The withdrawal of the application is governed by rule 41. The rule provides:
“(1)(a) A person instituting any proceedings may at any time before the matter has been
set down and thereafter by consent of the parties or leave of the court withdraw such
proceedings, in any of which events he shall deliver a notice of withdrawal and may
embody in such notice a consent to pay costs; and the taxing master shall tax such
costs on the request of the other party.” [emphasis added]
…
(c) If no such consent to pay costs is embodied in the notice of withdrawal, the other
party may apply to court on notice for an order for costs. ”
[10] The applicant did not seek the leave of the court and did not have the consent of the first
respondent. I granted an order removing the matter and ordering the applicant to pay the costs of the
first respondent. The order was made in the absence of the applicant on whose behalf there was no
appearance.
[11] Subsequently the counsel for the applicant appeared and I recalled the first order. Counsel
presented argument on the question of costs and after hearing argument I made the order set out
above.
[12] Section 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 provides that leave to appeal
may only be given where the judge or judges concerned are of the opinion that the appeal would have
a reasonable prospect of success or there is some other com pelling reason why the appeal should be
heard . The requirement that leave must be obtained serves the purpose of a gatekeeper and ensures
that valuable judicial resources are not wasted.1
[13] An appeal lies against the decision2 of the court and not against the reasons for the decision.3
[14] In Ramakatsa and others v African National Congress and another 4 Dlodlo JA summarised the
authorities as follows:
“[10] .. 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 pro per 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. ”
[15] Section 16 (2) of the Superior Courts Act provides that an appeal may be dismissed on the ground
that the issues are of such a nature that the decision sought will have no practical effect or result. 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.
1 Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2013 (6) SA 520 SCA para 24 .
2 Section 16 (1) (a) of the Superior Courts Act.
3 Medox v Commissioner, South African Revenue Service 2015 (6) SA 310 (SCA) para 10 and Tecmed Africa
(Pty) Ltd v Minister of Health and Another [2012] All SA 149 (SCA) para 17.
4 Ramakatsa and others v African National Congress and another [2021] JOL 49993 (SCA), also reported as
Ramakatsa v ANC 2021 ZASCA 31.
[16] Mr Mh ango on behalf of the applicant submitted that leave to appeal to the Full Court should be
granted, with an order that the costs be reserved. He argued that there are reasonable prospects of
success on appeal, and that there are exceptional circumstances that merit the granting of leave even
though the appeal is only against a cost order. He submitted that the conduct of the first respondent
was to blame for the state of affairs, and that the proper course to follow on 26 March 2024 would have
been to remove the matter from the roll and to require the first respondent to set it down in terms of
rule 41( 1)(c).
[17] Rule 41(1)(c) does not preclude a party from appearing to argue the costs in an application
withdrawn shortly before the allocated hearing date. The Court dealing with the matter is in a position
to hear argument on costs and to grant an order.
[18] In my view requiring the first respondent to accept the withdrawal and to then set the cost
argument down for another day would require a second Judge to read the papers, and the parties to
come to Court on another day to argue the matter, thus unnecessarily burdening the court system and
incurring extra costs for all parties.
[19] I conclude that there are no reasonable prospects of success on appeal, and that there are no
exceptional circumstances meriting leave on a question of costs only.
[20] Mr Venter who appeared for the first respondent argued that the application be dismissed with
costs on scale C as the matter was of sufficient importance and complexity to merit costs on the higher
scale. Mr Mhango on the other hand submitted that if the application were to be dismi ssed, the costs
should be on the lower scale.
[21] In my view a costs order on scale C is justified firstly because of the complexity of the application
and secondly because the application should never have been brought under circumstances were only
a cost order was sought to be appealed in the absence of identifiable exceptional circumstances.
[22] I therefore make the order in paragraph 1 above.
MOORCROFT AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected
and is handed down electronically by circulation to the Parties / their legal representatives by email and
by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed
to be 31 March 2025
ATTORNEY FOR THE APPLICANT: MD MHANGO
INSTRUCTED BY: BAZUKA & CO INC
COUNSEL FOR THE FIRST RESPONDENT: AJ VENTER
INSTRUCTED BY: UMS ATTORNEYS
DATE OF ARGUMENT: 28 MARCH 202 5
DATE OF JUDGMENT: 31 MARCH 202 5