SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION , CAPE TOWN)
Case No: 1783 / 2022
In the matter between:
K SEVEN INVESTMENTS CC Plaintiff
and
ANCHORPOPS 162 (PTY) LTD First Defendant
ANCHORPOPS 156 (PTY) LTD Second Defendant
MEHBOOB ADAM Third Defendant
Coram: Wille, J
Heard: 24 February 2025
Delivered: 12 March 2025
JUDGMENT ON LEAVE TO APPEAL
WILLE, J:
INTRODUCTION
[1] This is an application for leave to appeal chartered by the plaintiff. For ease
of reference, I will refer to the parties as they were cited in the action proceedings.
After I heard the parties , I decided to reserve my judgment as the adjudication of this
application for leave to appeal called for a hefty dose of judicial restraint.1
[2] I say this because the several grounds of appeal (if not all) deal with issues
never engaged with or dealt with in the pleadings or during the action proceedings .
As much as I may find these grounds of appeal interesting, I must exercise judicial
restraint. The legal position that finds application has been eloquently formulated as
follows:
‘…Turning then to the nature of civil litigation in our adversarial system , it is
for the parties, either in the pleadings or affidavits, which serve the function of
both pleadings and evidence, to set out and define the nature of their dispute
and it is for the court to adjudicate upon those issues. That is so even where
the dis pute involves an issue pertaining to the basic human rights guaranteed
by our Constitution, for “it is impermissible for a party to rely on a
constitutional complaint that was not pleaded ”. There are cases where the
parties may expand those issues by the w ay in which they conduct the
proceedings. There may also be instances where the court may mero motu
raise a question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no prejudice will
be caused to any party by its being decided. Beyond that it is for the parties
1 It was not legally permissible for me to deal with the new appeal grounds piloted by the plaintiff.
to identify the dispute and for the court to determine that dispute and that
dispute alone …’2
[3] The following passage in the same judgment further emphasises the legal
position:
‘…The parties may have their own reasons for not raising those issues …they
may choose not to do so because of its implications for the further conduct of
the proceedings …they may feel that their case is sufficiently strong as it
stands to r equire no supplementation …’’3
OVERVIEW
[4] The plaintiff’s pleaded case , which the defendants were called upon to meet ,
was that they allegedly owed R2 845,000.00 (plus interest and costs) to the plaintiff
as a result of a ‘performance ’ which the plaintiff had rendered to the first defendant ,
according to the fee agreement concluded between them .4
[5] The fee agreement recorded, among other things, the following:
‘…the plaintiff submitted a proposal to the Government of the Republic of
South A frica: Department of Performance Monitoring and Evaluation in the
Presidency (“DPME”) for the award of the tender put out by DPME (T7 of
2013/14) for the letting of the building situated on Erf 6 […] Hatfield Township,
Gauteng Province at 3 […] G[…] Stree t, Hatfield, Pretoria (“the first
defendant’s property”) …’5
[6] The structure was that if th is governmental department award ed the tender to
the plaintiff, the first defendant and the department would conclude a lease for the
2 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 at paragraph [13].
3 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 at paragraph [14].
4 On 5 April 2024 (“the fee agreement”). The second and third defendants were cited as sureties.
5 This is following clause 3.1. 2 of the fee agreement.
first defendant’s property . This was the ‘arrangement ’ agreed upon per the fee
agreement ’s terms.6
[7] Further, t he first defendant acknowledge d that if the tender was awarded as
aforesaid and the lease concluded, then the plaintiff would have been the ‘effective
cause ’ of the conclusion of the lease agreement. The defendants pleaded that they
disputed the plaintiff’s claims , arguing that the plaintiff was not entitled to the amount
claimed because neither it nor its sole member were the holders of the requisite
fidelity fund certificates at the time when the plaintiff allegedly rendered the
performance that formed the basis of its claim .7
[8] The defendants contended that the plaintiff never filed a replication ,
demonstrating that the legal shield they had specifically raised in their plea was bad
in law.8
[9] Thus, the defendants conducted the trial and their defence to the plaintiff ’s
claims based on the pleaded case before this court. This, they were entitled to do.9
[10] Notwithstanding the pleaded case and the common cause facts that emerged
during the trial proceedings, the plaintiff (in the application for leave to appeal )
charters an argument that a court of appeal will arrive at a different result based on
one or more of numerous new grounds of appeal now advanced, none of which were
pleaded by the plaintiff nor investigated during the trial.10
[11] Self-evidently, i t must be so that the plaintiff cannot , to the prejudice of the
defendants , now advance fresh lines of argument which were never pleaded by nor
investigated during the evidence at trial.11
6 This follows clause 3.2 of the fee agreement (these are standard terms used by estate agents).
7 The defendants specifically pleaded this defence from the outset .
8 The defendants did not know what case they had to meet.
9 This was the case that the defendants had to meet at the trial.
10 How the defendants are meant to deal with these new grounds of appeal is difficult to understand ?
11 Naude v Fraser 1998 (4) 539 (SCA) at 563 .
THE FIRST GROUND OF APPEAL
[12] This ground goes to the ‘definition’ of an estate agent. The plaintiff never
pleaded th ese new extensive legal and factual contentions it seeks to now advance
under this ground of appeal.12
[13] The defendants were never alerted to them as part of the case they were
called upon to meet . The court is criticised for ignoring issues never raised at the
trial.13
[14] Further, the defendants were never required to address these new issues in
the pleadings or during the evidence at the trial. Thus, it must be that the line of
argument the plaintiff seeks now to pursue for the first time is legally impermissible.14
THE SECOND GROUND OF APPEAL
[15] The core complaint here is that the court imposed upon the plaintiff the onus
to prove the fidelity fund certificate defence raised by the defendants. This is
challenging to understand as I made no findings (in any manner whatsoever) that the
plaintiff failed to discharge any onus in connection with the shield raised by the
defendants. The fidelity f und certificate defence was a legal hurdle the plainti ff had
to overcome.15
THE THIRD GROUND OF APPEAL
[16] This complaint goes to the factual findings that were made. The plaintiff
ostensibly relies on ‘new’ facts to underpin this ground of appeal .16
12 This was not engaged with during the trial.
13 The plaintiff’s case was that it acted for “itself”.
14 The plaintiff now seems to rely on new facts never engaged with during the trial.
15 The plaintiff failed in this connection.
16 These new facts are no t identified.
[17] The plaintiff contends that the defendants failed t o establish facts supporting
their defence. This is difficult to understand as the plaintiff refused to answer the
single question I asked him after he had testified , which answer (if given) may have
assisted in the further determination of the matter.17
THE FOURTH GROUND OF APPEAL
[18] The core of this complaint also goes to the issue of the fidelity fund certificate.
What is now advanced was never pleaded in support of a contention that the fidelity
fund certificate requirement did not apply to the pla intiff or that the plaintiff’s conduct
fell beyond the ambit thereof.18
THE FIFTH GROUND OF APPEAL
[19] This is the same ground of appeal chartered by the plaintiff in the first ground
of appeal. The fee agreement remained the contractual foundation for the plaintiff’s
claim against the defendants.19
[20] Thus, if the plaintiff wished to rebut the reliance on the fidelity fund shield
raised by the defendants, it should have pleaded this by setting this out in detail by
way of a replication to the defendant’s plea so that the defendants could be alerted
to the case they had to meet at the trial. The prejudice to the defendants is self -
evident.20
THE SIXTH GROUND OF APPEAL
[21] Again, this go es to the issue of the fidelity fund certificate. The sole member
of the plaintiff testified that the plaintiff acted on its ‘own’ behalf or, as he put it, for
‘itself’. That is precisely why I attempted to engage further with this issue and asked
17 The plaintiff filed no replication to the legal defence raised by the defendants.
18 Nowhere can such pleaded allegations be found.
19 This does not form the subject of any dispute.
20 No replication was filed by the plaintiff.
this w itness a single question , which he declined to answer. I asked this question
because the plaintiff was not the owner of the subject property , and I wanted to
understand how he ‘contracted ’ with the property owner . No answer was
forthcoming. That is, amo ng other things, why I concluded that the plaintiff
conducted itself as an agent .21
CONSIDERATION
[22] I made specific factual findings based mainly on the common cause facts
taken together with the sole member of the plaintiff’s refusal to answer the question I
put to him. It is challenging to understand how this amounted to a demonstrable and
material misdirection that is wrong , which would commend itself to the appeal
proce ss of another court.22
[23] Thus, there is no sound, rational basis upon which I can conclude that the
plaintiff has prospects of success on appeal. This court may only give leave to
appeal if it is of the opinion that the proposed appeal would have a re asonable
prospect of success.23
[24] The mere possibility of success or an arguable case is not enough .24
CONDONATION APPLICATION
[25] The plaintiff failed to adhere to the procedural directives required to pursue its
application for leave to appeal. Eventually, the plaintiff filed a belated application for
condonation for leave to appeal against the order I handed down many months
ago.25
21 This issue was never engaged with by the plaintiff.
22 This is because my question was not answered at all.
23 In terms of section 17(1) (a) (i) of the Superior Courts Act,10 of 2013.
24 MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176 (25 November 2016) at para [17].
25 My judgment and order was handed down on 8 October 2024.
[26] I could not find any ‘substantial ’ legal grounds supporting the application for
condonation piloted o n behalf of the plaintiff in support of its application for leave to
appeal. However, to attempt to bring some finality to these proceedings and, given
the defendant s’ election not to oppose the application for condonation , I granted
condonation for the l ate filing of the application for leave to appeal.26
ORDER
[27] The following order is granted:
1. Condonation for the late filing of the leave to appeal is granted .
2. The application for leave to appeal is refused.
3. The applicant shall be liable for th e costs of the condonation
application .
4. The applicant shall be liable for the costs of the leave to appeal .
5. These c osts shall include costs of counsel on Scale C.
__________
E. D. WILLE
(Cape Town )
26 This is despite the fact that no case had been made out for condonation.