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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 54391/2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

7/11/2017

In the matter between:

THE MINISTER FOR THE DEPARMENT                                                          APPLICANT

OF CORRECTIONAL SERVICES

and

BLOEMFONTAIN CORRECTIONAL CONTRACTS                                     RESPONDENT

PROPRIETARY LIMITED

Coram: HUGHES J

REASONS

HUGHES J

[1]This is an application for leave to appeal against the whole of my judgment and order handed down on 13 September 2017.

[2] The legislation which deals with the circumstances upon which leave to appeal may be granted is set out in section 17 (1) of the Superior Courts Act 1O of 2013 (the Superior Courts Act). What is specifically relevant in this case, is section 17 (1) (a). For easy reference I set out section 17 (1) in its entirety below:

"SECTION 17(1)

(1)Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)  (i) the eappeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration

(b)the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the

case, the appeal would lead to a just and prompt resolution of the real issues between the parties." [My emphasis]

[3]The test which was applied previously in applications of this nature was whether there were reasonable prospects that another court may come to a different conclusion. See Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 8908. What emerges from section 17 (1) is that the threshold to grant a party leave to appeal has been raised. It is now only granted in the circumstances set out and is deduced from the

words ' only' used in the said section. See The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JOR 2325 (LCC) at para [6], Bertelsrnann J held as follow:

"It is clear that the threshold for granting leave to appeal against a iudgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty y that another court will differ from the court whose iudqment is sought to be appealed against." [My emphasis].

[4] The grounds for leave to appeal both legal and factual are to a large extent asserting that this court's reasoning was erroneous and that I failed to take into consideration or give sufficient weight to other factors.

[5] What I do not propose to do is to set out the exhaustive grounds of appeal again or repeat that which is set out in my judgment, in as much as that which was relevant was dealt with in the judgment.

[6) The applicant nails its colours to the mast on section 17 (1) (a) being that 'the appeal would have a reasonable prospect of success'.

[7]The applicant submits that I erred in that I mischaracterized the case of the applicant thus committing gross misdirection. The case I characterized in paragraph [23) of my judgment is said to be incorrect and the correct characterization is as per the notice for leave to appeal which I set out below:

"3. The main thrust of the OCS's case is that:

DCS decided in terms of the Concession Contract Clause 4.1 to call up for the Respondent (BCC) to indemnify the DCS for the costs it (OCS) incurred as a result of the section 112 intervention.

4. The DCS's case and what the Learned Judge characterized as OCS's case are miles apart."

[8]I am of the view that I correctly characterized the case I was tasked with and as such I illustrate same from an extract of the record of the proceedings:

"MR LAKA: Hence I am saying, M'Lady, let me repeat this, setoff is a consequence or is a consequence of indemnity. It is a process of recovery, it is not to recover, it is a process to recover.

The decision that now I am going to take money from your pocket is indemnity."

[At pg44 lines 9-13]

[9]It was the applicant own directive which lead to my characterization and conclusions reached in the judgment which I do not propose to deal with in these

reasons. I do not believe that another court would find that I misdirected myself in any manner.

[10]What I am basically faced with in this leave to appeal in my view, issubmissions and contentions being made of what I should have found, should have considered critically, should have considered certain probabilities and erred in not considering factors and erred in not taking certain factors into account.

[11]In my view, the conclusion that I have reached from an analysis of the proven facts could only be that which is apparent from my judgment. I am fortified in my view that on the facts of this case the applicant does not have prospect of success before another court.

[12]Consequently the following order is made:

[12.1] The application for leave to appeal must fail and is dismissed with costs.

W Hughes

Judge of the High Court Gauteng, Pretoria

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