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Nkwanyana and Another v Open Mic Productions (Pty) Ltd and Another (Leave to Appeal) (098393/2023) [2025] ZAGPPHC 734 (24 July 2025)

30 Reportability
Civil Procedure
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Brief Summary

Appeal — Leave to appeal — Application for leave to appeal refused — Requirements of section 17 of the Superior Courts Act not met — Court empowered to vary its order mero motu — Applicants sought leave to appeal against a previous order, asserting reasonable prospects of success — Court found no compelling reasons for the appeal and varied the order to remove ambiguity regarding costs — Applicants ordered to pay costs of the application on a party and party scale.

Comprehensive Summary

Case Note


NOMCEBO NOTHULE NKWANYANA and EMAZULWINI PRODUCTION AND PROJECTS (PTY) LTD v OPEN MIC PRODUCTIONS (PTY) LTD and AFRICORI SA (PTY) LTD

Case Number: 098393/2023

Date: 24 July 2025


Reportability


This case is not reportable as it does not meet the criteria set out in section 17 of the Superior Courts Act. The significance of this case lies in its clarification of the requirements for leave to appeal and the court's authority to amend its own orders under Rule 42(1)(b) of the Uniform Rules of Court. The judgment serves as a reminder of the stringent standards that must be met for an appeal to be granted, particularly regarding the prospects of success.


Cases Cited



  • Superior Courts Act 10 of 2013


Legislation Cited



  • Superior Courts Act 10 of 2013


Rules of Court Cited



  • Uniform Rules of Court, Rule 42(1)(b)


HEADNOTE


Summary


The court addressed an application for leave to appeal, determining that the applicants failed to demonstrate reasonable prospects of success. Consequently, the application was refused. Additionally, the court exercised its authority to amend its previous order to remove an ambiguous phrase regarding costs.


Key Issues


The key legal issues included whether the applicants had established reasonable prospects of success for their appeal and whether the court could amend its previous order to clarify the costs associated with the representation.


Held


The court held that the application for leave to appeal was refused due to a lack of reasonable prospects of success. Furthermore, the court varied its previous order by removing the phrase regarding the costs of employing two counsel, determining that only one counsel's costs were warranted.


THE FACTS


The applicants, Nomcebo Nothule Nkwanyana and Emazulwini Production and Projects (Pty) Ltd, sought leave to appeal a previous judgment. During the proceedings, it was noted that the respondents were not represented by two counsel, leading to ambiguity in the order regarding costs. The applicants acknowledged that they did not meet the criteria for compelling reasons for the appeal to be heard.


THE ISSUES


The court needed to decide whether the applicants had reasonable prospects of success in their appeal and whether it had the authority to amend its previous order to clarify the costs associated with the representation of the respondents.


ANALYSIS


The court reviewed the application for leave to appeal and the written submissions from both parties. It concluded that the applicants did not present compelling reasons for the appeal, thus failing to meet the requirements of section 17(1)(a)(i) of the Superior Courts Act. The court also recognized the ambiguity in the previous order regarding costs and determined that it was within its power to amend the order to remove the reference to the costs of employing two counsel, as it deemed that only one counsel was necessary for the application.


REMEDY


The court ordered that the application for leave to appeal be refused. It also varied the previous order by deleting the phrase concerning the costs of employing two counsel. The applicants were ordered to pay the costs of the application on a party and party scale, with the one party absolving the other.


LEGAL PRINCIPLES


The judgment established that for an appeal to be granted, the applicants must demonstrate reasonable prospects of success. Additionally, the court affirmed its authority under Rule 42(1)(b) to amend its own orders to clarify ambiguities, ensuring that the orders reflect the court's intent accurately.

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REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA


Case Number: 098393/2023








In the matter between:


NOMCEBO NOTHULE NKWANYANA First Applicant

EMAZULWINI PRODUCTION AND PROJECTS (PTY) LTD Second Applicant

and

OPEN MIC PRODUCTIONS (PTY) LTD First Respondent

AFRICORI SA (PTY) LTD Second Respondent

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 and for hand-down is deemed to be 24 July 2025.

Summary: Application for leave to appeal. The requirements of section 17 of the
Superior Courts Act not met. Court empowered by rule 42(1)(b) to vary its order
mero motu. Held: (1) The application for leave to appeal is refused. Held: (2)
Paragraph 2 of the order is varied by deleting the phrase “which costs include
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ _______
DATE SIGNATURE
24 July 2025

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the costs of employing two counsel”. Held: (3) The applicant to pay the costs of
this application on a scale of party and party taxable or to be settled on scale B,
the one party paying absolving the other.


JUDGMENT LEAVE TO APPEAL
MOSHOANA, J

Introduction
[1] This is an application launched in terms of section 17(1)(a)(i) of the Superior
Courts Act (“the Act”)1. It must be declared upfront that the applicants, upon enquiry,
informed this Court that the provisions of section 17(1)(a)(ii) do not arise as none of
the grounds pursued by the appl icants provides some compelling reasons for the
appeal to be heard. Accordingly, the enquiry will be limited to the question whether the
appeal, if leave is granted, would have a reasonable prospect of success.
Analysis
[2] Having perused the application for leave to appeal, the written submissions of
the parties and considered all the grounds punted for to impugn the judgement and
order, this Court is not of an opinion that the appeal for which leave is sought would
have reasonable prospects of success. Having formed that opinion, as required by
section 17(1)(a)(i) of the Act, leave to appeal may not be given. The application is
bound to fail. During argument of this application, both parties were ad idem that at
the hearing of the dismissed application, the respondent was not represented by two
counsel. Such implied that paragraph 2 of the order constituted an ambiguity which
requires a removal to achieve clarity. Rule 42(1)(b) of the Uniform Rules empowers
this Court to mero motu vary an order. Regard being had to the provisions of section
16(2)(a) of the Act it would be impractical for this Court to ask the appeal Court to

1 Act 10 of 2013.

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correct the ambiguity on a costs issue. Accordingly, the phrase “which costs include
the costs of employing two counsel” is excised from paragraph 2 of the order.
[3] Turning to the costs of the present application, two counsel appeared on behalf
of the respondent. A submission was made that the opposing respondent should be
awarded the costs of employing two counsel. This Court takes a view that the present
application did not deserve employment of two counsel. Therefore, the opposing
respondent is entitled to the costs of employing one counsel.
[4] Because of all the above reasons, I make the following order:

Order
1. The application for leave to appeal is refused.
2. Paragraph 2 of the order made on 9 May 2025 is varied by deletion
of the phrase “which costs include the employment of two
counsel”.
3. The applicants are to jointly but severally pay the costs of this
application, the one paying absolving the other, on a scale as
between party and party to be settled or taxed at scale B.


____________________________
G N MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

APPEARANCES:
For the applicants: Ms Z Cornelissen.
Instructed by: Rosengarten & Feinberg, JHB.
For the Respondent: Mr M R Maphutha with Mr A Seshoka
Instructed by: M Ramalivha Attorneys, Sandton
Date of the hearing: 23 July 2025
Date of judgment: 24 July 2025

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