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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

                                                         Case No: 31459/2018  

In the matter of:

Lindicento Proprietary Limited                                          First Applicant
First Rand Bank Limited                                                    Second Applicant
The Registrar of Deeds, Pretoria                                        Third Applicant
Priscilla Mumsie Baby Samuels                                        Fourth Applicant

                         and

Lakeside City Trading 286 (Pty) Ltd                                 Respondent

                                           
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

Maumela J.

1.  This is an application for leave to appeal. It fell to be heard in the midst of the Covid 19 pandemonium. Efforts to pursue it via a virtual mode did not come to fruition, hence an agreement among the parties to rather file heads electronically.

2.  For purposes of these proceedings, the parties that where the Respondent in the case against which leave to appeal is sought to be brought, shall be referred to as the First to Fourth Applicant. The party that was referred to as the Applicant shall be referred to as the Respondent in these proceedings.

3.  Section 17(1) of the Superior Courts Act, Act 10 of 2013,
("the Superior Courts Act") regulates applications for leave to appeal and it provides as follows:
17 (1). Leave to appeal may only be given where the judge or judges
           concerned are of the opinion that-
           (a). (i). the appeal 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 should 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.

4.  The test which applied previously in applications for leave to appeal was whether reasonable prospects exist which indicate that another court may come to a different conclusion. The current test had the effect that the threshold for this consideration has been raised. In the case of Nannen and Others v Momentum and Others[1]; Hughes J. stated the following: “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[2], at para [6], Bertelsmann J held as follows: "It is clear that the threshold for granting leave to appeal against a judgment 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[3]. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose, judgment is sought to be appealed against."

GROUNDS FOR LEAVE TO APPEAL.

5.  The applicants cited the following grounds for the application for leave to appeal:
First Ground.
(a). That whereas in paragraphs 39 to 41 of the judgment, a
      point in limine entailing a dispute of fact is alluded to, the
      Court failed to deal with or rule on the point in limine.
(b). That the Court erred in deciding an application, on motion
      proceedings, on the version of the Applicant where it should
      have applied the well-known Plascon Evans rule. It is argued
      that the Court ought to have concluded that there were, on a
      significant number of relevant aspects, fundamental and
      deep factual disputes which were irresolvable on the papers,
      and on that basis, the matter should have been decided on
      the version of the Respondents.
(c). That the Court erred in granting relief to the Respondent
      because on the facts, as alleged by the Applicant itself, the
      ultimate purpose behind the transfer of the property, was to
      defraud the creditors of the Fourth Applicant. It is submitted
      that on the Respondent ’s version, the transaction therefore
      was one in fraudam creditorum. The Applicant holds the view
      that consequently, by virtue of the doctrine of ex turpi causa,
      the Court ought not to have granted any relief, because the
      matter was tainted with fraud according to the Respondent
      itself. It points out that it was not fraud with reference to the
      Applicant, but fraud with reference to the creditors of the
      Fourth Applicant. The Applicant contends that on that basis,
      the Applicant ought to have been found to be non-suited.

6.  The First Applicant contends that the Court ought to have held that the mother of the Fourth Applicant, Ms. Veronica Samuels, was not at arm’s length appointed as a director of the Applicant. It argues that the Court should have found on the facts that as between the Fourth Applicant and her mother, that the Fourth Applicant is the person retaining authority to act on behalf of the company. The Applicant, and the mother of the Fourth Applicant were simply artificially appointed on papers as directors, without the mother of the Fourth Applicant really becoming an independent objective and arm’s length directors.

7.  The Applicant argued further that the Court should have found that the appointment of the mother of the Fourth Applicant was simply that she acted as a puppet or a facade for the Fourth Applicant so that the latter, notwith­standing the fact that her mother was on paper reflected as a director, retained the authority to act on behalf of the company. The appointment of the mother was only fictional.

8.  According to the Applicant, it is on that basis that the Court should have held that the actions of the Fourth Applicant represented actions for and on behalf of the company and that there was consequently a representation made to the First and Second Applicants, by both the First Applicant, the Fourth Applicant and her mother that there was ostensible authority to represent the Applicant in the transactions and the signing of the documents which culminated into the transfer of the property into the name of the First Applicant.

9.  The First Applicant contends further that in addition, and by virtue of the representation made to the First and Second Applicants, namely that the Fourth Applicant was authorised to act on behalf of the First Applicant. It is submitted that the First Applicant stands estopped and precluded in law from denying the fact that the person purporting to represent it, namely the Fourth Applicant, who appended the signature of her mother as if she was the director of the company, bound the Respondent and that the Respondent is consequently bound to the representations made on its behalf, and is not in law entitled to deny the absence of authority by the person purporting to represent it.

Second Ground.

10.  The applicant points out that in paragraphs 28 to 33 of the judgment, the Court mentioned the considerations of accepting a supplementary affidavit. The Applicant contends that the Court did not deal with, or rule on the admission or otherwise of the supplementary affidavit. Applicant points out that in paragraph 35 to 38 of the judgment, a point in limine was raised in the supplementary affidavit. The point in limine was about the contention that the respondent failed to make a case out in the founding affidavit. The Applicant pointed out that it is only in the reply where the Respondent sought to make its case out. The applicant raised the issue that the Court did not deal with or rule on these points.

Third Ground.

11.  The applicant pointed out that under paragraph 42 of the judgment, a point in limine concerning hearsay evidence is mentioned but it was not dealt with in the judgment.

Fourth Ground.

12.  The Fourth ground of appeal mentioned by the applicant is about the fact that in paragraph 43 of the judgment, prescription was mentioned as a point in limine. Applicant makes the point that the Court again failed to deal with or rule on this point.

Fifth Ground.

13.  According to the Applicant, the Fifth grounds of appeal is entailed under paragraph 44 of the judgment. It concerns the aspect of non-joinder of the Home Owner’s association. In raising this point in limine, the Applicant pointed out that in the judgment, the Court failed to address this issue.

Sixth Ground.

14.  In paragraphs 45 to 47 of the judgment, the defence of undue influence was raised. The authorities of Karabus motors v Van Eck[4] and Slipknot Investments 777 (Pty) Ltd v Du Toit[5] were mentioned. These authorities hold in this regard, that it is a general rule of our law that if the fraud, which induces a contract, does not proceed from one of the parties, but from an independent third person, it will have no effect upon the contract. It has been held that the fraud must be the fraud of one of the parties or of a third party acting in collusion with, or as the agent of one of the parties.

15.  In paragraph 68 of the judgment, this Court held: “Forgery of the signature of one Samuels preceded the transfer of the property in issue in this case. This forgery is not disputed. All the First Respondent submits is that it was not party to the commission of fraud and neither was it aware of the fraud. It argues that its title as against the property should remain unaffected because it neither participated in the commission of fraud nor had knowledge of it. However, no plausible explanation is advanced for the anomalies around signatures and the apparent lack of authority on the part of the person behind the generation of the Power of Attorney that facilitated the sale and transfer of the property. Neither is there a sound reason advanced for why the property could be sold without the knowledge and participation of its co-directors. The role of the late Sheriff in the entire matter where no liquidation was underway, is difficult to understand. The court finds that the sale and transfer of the property was preceded by commission of fraud.”

16.  The applicant argues that the court failed to take the following into account:
(1). That the Fourth Applicant admits that she forged the
      signature of her mother, “Samuels”, to enable the transfer of
      the property,
(2). That the Applicant denies the authority of the Fourth
      Applicant to have disposed of the asset of the First Applicant, (3). That       on pages 129 and 130 of the indexed bundle, it is noted
      that the First Applicant has one director who is not Mr.
      Ace Tayob. That director is the deponent to the opposing
      and supplementary Affidavits, who took directorship between
      July and August 2014. The applicant contends that the Court
      failed to apply the authorities to the facts.

Seventh Ground.

17.  Under paragraphs 48 to 52 of the judgment, the defence of ‘ostensible authority’ is mentioned. The case of Makate v Vodacom (Pty) Ltd[6] is cited. In that case, the court stated the following: “While this kind of authority [ostensible or apparent] may not 
have been conferred by the principal, it is still taken to be the authority of the agent as it appears to others. The presence of authority is established if it is shown that a principal by words or conduct has created an appearance that the agent has the power to act on its behalf. Nothing more is required.” “It is clear that, even if the representee is not an outsider, under apparent authority the principal could still be bound”. “The concept of apparent authority was introduced into law for purposes of achieving justice in circumstances where a principal had created an impression that its agent has authority to act on its behalf. If this appears to be the position to others and an agreement that accords with that appearance is concluded with the agent, then justice demands that the principal must be held liable in terms of the agreement.”

18.  The applicant points out that under paragraph 53 of the judgment, the Court stated the following: “The parties involved in the transaction towards the sale and transfer of the property were all in a position to be abreast with all the details of the First Respondent. The First Respondent cannot rely on the notion of ostensible authority where the members acting on its behalf were in an ideal position to know that there are two co-directors in charge of the Applicant, both of whom have to be on board within the process towards the sale and transfer of the property.”

Eighth Ground.

19.  The Applicant indicates that under paragraph 58.2 of the judgment, the court found that a sale agreement was concluded between the Respondent and First Applicant, on or about the 9^th of July 2014. The sale agreement is not dated, and the power of attorney is dated the 4^th of August 2014. The effective date of the sale agreement should therefore be the 4^th of August 2014.

Ninth Ground.

20.  The Applicant points out that under paragraph 54 of the judgment, the Court stated the following: “The First Respondent contends that she bought the property and registered it in her names. However, the proof of sale or purchase produced is beset with a number of anomalies… no explanation was provided for the fact that two different signatures attributed to one and the same person stand appended to the documents pertaining to the purported sale and transfer of the property.“

21.  The Applicant points further that under paragraph 55 of the judgment, the court stated the following: “A large number of documents relating to the transfer appears not to have been dated. The alleged signature of the Fourth Respondent’s mother is patently not the same as the signature appearing on the confirmatory affidavit.” The applicant indicated that under paragraph 70 of the judgment, the Court held as follows: “Considering that the purported sale and transfer of the property is laden with nullity, the status quo as it obtained before efforts towards the sale and transfer, remains in place. In the result, the sale and the transfer of the property from the Applicant to the First Respondent dated the 29^th of September 2014 stands to be set aside.”

Tenth Ground.

22.  The applicant indicates that from paragraph 59 to 65 of the judgment, the Court in evaluating the evidence only refers to the Applicant’s version of events. That is the basis on which it arrived at the finding noted under paragraph 66 of the court’s judgement which is that: “Mkhize who was also in charge of the Applicant, together with the Fourth Respondent at the time of the transfer of the property did not participate when the transfer was processed. No special resolution was made by the shareholders of the company, the Applicant, towards transfer of the property. The signatory of the power of attorney on the basis of which the transfer was processed did not have authority to sell and to alienate the property of the Applicant. No valid sale and transfer of the property took place. In light of lack of authority to authorize the transfer on the part of the person who purports to have authorized the sale, the acts purporting to have done so amount to a nullity.”

23.  The Applicant indicates that the First and the Tenth Grounds of appeal are similar. It points out that relevant aspects involved in the factual disputes cannot be resolved on the papers because they include inter alia, the involvement of the deceased Sheriff and Vezi & De Beer Attorneys; as well as the authority or lack thereof regarding the Power of Attorney together with estoppel. It argues that regarding the misplaced application of the Plascon Evans Rule, the judgment by this court appears to make a credibility finding in motion proceedings in favour of the Respondent and the 4^th Applicant despite evidence to the contrary.

24.  The Applicant cited the following examples to illustrate the point:
(a). That no notice is taken of the admitted mala fide conduct of
      the 4^th Applicant on behalf of the First Applicant in the
      transaction that constitutes conduct in fraudem creditorum
      (SEE: Trustees Estate Chin v National Bank of South Africa
      Ltd[7]: “it would be sufficient to constitute mala fides if the
      transaction in question were one in fraudem creditorum, as
      that expression is usually understood in regard to insolvency
      matters”). Further, the forgery, (fraud), of the signatures by
      the 4^th Applicant on behalf of the First Applicant was ignored,
      so was public policy when restoring something given under
      an illegal contract by regard of the degrees of turpitude,
      (depraved or wicked behavior), in delictual contracts to do
      simple justice between man and man (See: Jajbhay v
      Cassim[8]).

25.  The Respondent points out that in paragraph 68 of the Judgment, the court concluded that the 1^st Applicant gave no plausible explanation for anomalies around the signatures and apparent lack of authority on the part of the person who gave the Power of Attorney. It argues that the judgment takes no cognizance of the fact that the 4^th Applicant admits that she forged the signatures and committed fraud. It points out that the authority or lack thereof as well as the participation of the director(s) would be curiously within the knowledge of the First and the 4^th Applicants and that the 1^st Applicant cannot be expected to prove a negative.

26.  According to the First Applicant, the court did not recognize Regulation 44A(d)(ii) (aa) and (bb) of the Deeds Registries Act 47 of 1937, which holds that the conveyancer attests to having had authority. It also raises the issue that the court ignored the fact that the mother of the 4^th Respondent’s artificial and not her arm’s length appointment means that the authority to act remained with the 4^th Applicant due to fictional appointment, thus the representation made to the 1^st Applicant that the 4^th Applicant had ostensible authority pretending to be the mother and the Applicant is estopped from denying authority, (See Makate v Vodacom (Pty) Ltd[9], pertaining to the Seventh Ground of appeal.

27.  The Applicant contends that the Court unconditionally; without testing the evidence, accepted the evidence of the Respondent in respect of inter alia in respect of paragraph 56.1 and 67 of the judgement, where it refers to and accepts that that pages 132 and 133 of the papers indicate that the property is a vacant stand. The First Applicant makes the point that Regulation 35 of the Deeds Registries Act="_ftnref10">[10], provides that conditions must be conveyed verbatim into a subsequent deed and further, that no reference may be made to buildings on the property[11]).

28.  The Applicant argues that the Court did not correctly apply the facts to the parties and that the evidence of the 1^st Applicant was blatantly ignored while that of the Respondent was quoted verbatim. The expectation of the Court placed upon the 1^st Applicant, (who testifies that the first time the 1^st Applicant became aware of the 4^th Applicant forging the signatures was upon the service of the supplementary affidavit of the 4^th Applicant to explain the anomalies pertaining to the signatures flies in the face of the concession and admission of the 4^th Applicant’s forgery and fraud, which appears not to have been weighed in. The First Applicant charges that the mala fide objective of the transaction, on the part of the 4^th Applicant, was swept under the proverbial carpet when the matter was decided.

29.  The Applicant argues the Respondent wrongly relied on the undue influence of the deceased Sheriff in accordance with hearsay evidence attributed to him by the 4^th Respondent and the lack of authority of the 4^th Respondent when fraudulently forging the signatures. The reliance on these aspects by the Applicant causes the matter to fall within the realm of Karabus motors v Van Eck[12] and Slipknot Investments 777 (Pty) Ltd v Du Toit[13]. The First Applicant argues that the court did not apply these authorities and that this aspect was not discussed again, save for the fact that it was mentioned that the 1^st Applicant relies on this authority. The applicant points out however, that the authority was not applied to the facts.

30.  The Applicant submits that the 4^th Applicant represented to the 1^st Applicant and created the impression that she has authority to act on behalf of the First Applicant. It points out that this falls squarely within the ambit of the case of Makate v Vodacom (Pty) Ltd[14], under ostensible authority, however, the principles highlighted in Makate were not correctly applied in the face of such facts falling within the principles of ostensible authority.

31.  On the basis of the above, the First Applicant contends that the Court erred in granting the order it did, and that leave to appeal ought to be granted. It views that another Court would, have dealt with the points in limine and would have found differently in respect of grounds 1, 6, 7, 8, 9 and 10.

32.  The Applicant points out that no grounds exist on the basis of which a cost order can be granted against the 1^st Applicant and that therefore, if leave to appeal is granted, then the costs for the leave of appeal should be held to be costs in the appeal. It makes the point that in casu, it is merely exercising its right to appeal and that at this stage, it ought not be mulcted through a cost order.  

33.  It is trite that subject to the exercise of a judicious discretion, and after consideration of all aspects at hand, courts are entitled to determine costs in matters serving before them. In the case of Intercontinental Exports (Pty) Ltd v Fowles[15], at paragraph 1055F-G, the Court stated following: “It is so that when awarding costs, a court has a discretion which it must exercise judiciously and after due consideration of the salient facts of each case at that moment. The decision a court takes is a matter of fairness to both sides”.

34.  The First Applicant filed heads towards leave to appeal before full judgment was handed down. The Respondent takes issue with this approach on the part of the First Applicant; indicating that this is not compliant with the provisions of Rule 49(1) (b) of the Uniform Rules. The Respondent raised the concern that this approach makes for indication that the First Applicant anticipated the reasons for judgment which stood to be given by the Court.

35.  The Respondent points out that the reasons given by the Applicant for leave to appeal are merely a repetition of its heads of argument and they fall short of the requirement expressed in the case of Songono v Minister of Law and Order[16], where the court held that the application for leave to appeal must clearly and succinctly spell out the grounds upon which leave to appeal is sought and that those grounds should be expressed in a clear and unambiguous terms.

36.  The Respondent expresses concern that the Applicant harbored a preconceived attitude to appeal the judgment in this matter, regardless of whatever reasons that may be advanced by the Court in judgment. Be that as it may, the Applicant has a right to appeal from which no adverse consequences should ensue. The First Applicant filed amended heads after judgment was delivered. The Respondent points out that in doing so, the First Applicant ended up advancing completely new grounds towards leave to appeal. It points out that in doing so, the First Applicant dealt with points in limine.

Dispute of Facts.

37.  The Respondent charges that the view on the part of the First Applicant that there is a foreseeable dispute of facts is misguided. It submits that in its founding affidavit, it succinctly and properly outlined its case to which the First Applicant was able to adequately answer in the answering affidavit, although its allegations were tainted with falsehoods. In this regard, the Respondent submits that the Court was correct in dismissing the point in limine because there was no real, genuine and bona fide dispute of fact.

38.  The Respondent argues that the Court’s decision is hein line with the observation made in the case of Frank v Ohlsson’s Cape Breweries LTD[17], where the Court per Innes CJ, stated the following: “But where the facts are really not in dispute, where the rights of the parties depend upon a question of law, there can be no objection, but on the contrary a manifest advantage in dealing with the matter by speedier and less expensive method of motion.”

39.  The Respondent contends that its case was mainly premised on the question of law and the factual issues raised by the Applicant were not foreseeable, much as they do not appear to be real, genuine and bona fide factual disputes. The Respondent referred to the decision of Wightman t/a JW Constructions v Headfour (Pty) Ltd and Another[18], at page 10. The applicant conceded the crucial factual issue, which is the presence of fraud in the purported sale and a subsequent transfer of the property. From the above, it is clear that the point in limine raised was frivolous and it was therefore destined to fail.

40.  The Applicant disputes the contention by the Respondent that its case was made out only in the replying affidavit. It contends that it placed sufficient facts in its founding affidavit which demonstrate clearly that the transfer of the property from the Applicant to the Respondent was fraudulent. It submits that despite an attempt, the Applicant failed to rebut its contention. The Respondent submits that this point in limine lacks merit and it stands to be dismissed.

41.  The Respondent submits that the contention by the Applicant that the Court failed to rule on the admissibility of the supplementary affidavit is pointless. It points out that the ruling on the admissibility or otherwise of the supplementary affidavit cannot have an impact on the result; neither did it alter the First Applicant’s position. It contends that the point in limine raised cannot have any legal consequence.

Hearsay, Prescription and Non-Joinder.

42.  The Respondent submits that the judgment of this Court in this matter sufficiently addressed and considered the technical points that were raised. It submits that there are no reasonable grounds on the basis of which to uphold the points in limine and that they therefore stand to be ultimately dismissed.

43.  The Respondent further submits that failure on the part of the Court to pronounce on the points in limine raised by the First Applicant should not turn on anything because the court considered them in any case. Points out that this should not result in any legal consequence since the logical conclusion is that the points in limine were dismissed. In the unreported case of Tsatsi v Virgin Active and Others[19], the Court per Klaaren AJ held as follows: “in my view, the point in limine was a non-starter. In approaching the matter as a whole, there was proper evidence before court, in the form of an affidavit deposed to by the Legal Director of Virgin Active who disclosed the basis of his knowledge of the facts of the matter, which appears from his position and from the papers as a whole. In my view, the confirmatory affidavits of various persons, including second to fifth respondents effectively scuppered the appellant’s argument. The fact that Klaaren AJ failed to mention it in his judgment is of no real moment in the circumstances.”

44.  The Respondent submits that the First Applicant’s submission on hearsay evidence is misguided. It points out that in paragraph 9.1 of the First Applicant’s supplementary affidavit, there was a concession that the point in limine has fallen away and in paragraph 9.2 the First Applicant explicitly stated that the relief with regard to the said point in lime is abandoned[20].

45.  The Respondent submits that the point in limine pertaining to prescription is misplaced and that the correct position was adopted by the constitutional court in the case of Mokate v Vodacom[21], where the Apex Court held at paragraph 91 that: “ in the Road Accident Fund and Another v Mdeyide[22], at paragraph 10 this Court, having expressed reservations on whether an obligation may constitute a debt contemplated in the Prescription Act, stated that the failure to meet the prescription deadline set in terms of the Act, denies a litigant access to court. What this means is that if the Act finds application in a particular case, it must be construed in accordance with section 39(2). On this approach an interpretation of debts which must be preferred, is the one which is least intrusive on the right of access to courts.” In its narrow sense the word ‘debt’ would not include the right to claim restoration of ownership, which is the main claim in the Applicant’s case.

46.  The Respondent submits that from the totality of the evidence, the Court did not deem it necessary to deal with any of the points raised due to their apparent lack of merit and their vexatious nature.

Merits.

47.  The Respondent contends that it successfully demonstrated that the purported sale agreement was not authorized by the directors of the First Applicant and that there was no authority for purposes of authority alienating the property to the First Applicant. It submitted that the First Applicant failed dismally to prove, on the balance of probabilities that the purchase price was paid. How and when the purchase price was paid, is not known[23]. The First Applicant alleged when it acquired the property, despite the fact that certificate of occupation was issued, the property required further improvements but it failed to demonstrate that it spent money on such improvements. It submits that this Court correctly found that it is questionable that as on the date of the purported sale, the property was still indicated as a vacant piece of land even though improvements had been effected on it at a huge cost.

48.  The Respondent submits that the Court correctly found that the purported sale and transfer of the property was preceded by fraud and that consequently, it stands to be set aside and the status quo ante the fraud ought to be restored.

49.  As indicated above, section 17 of the Supreme Court Act 10 of 2013 regulates application for leave to appeal. The Respondent submits that this section creates legal certainty concerning what the determination should be when an application for leave to appeal is to be considered and key to this is whether another court would arrive at a different decision as was held in the decision of Notshokovu v S[24].

50.  The Respondent submits that from the evidence presented by the parties, there exist no reasonable prospects that the appeal would succeed and therefore, it contends that there are no compelling reasons for leave to appeal to be granted. Concerning costs, The Respondent submits that the Applicant be ordered to pay the costs of this application.

Evaluation.

51.  Taking into consideration the provisions of Section 17(1) of the Superior Courts Act, Act No 10 of 2013; ("the Superior Courts Act"), the court has to determine the possibility or otherwise that another court “would differ from the court whose, judgment is sought to be appealed against."

52.  In the light of the decision in the case of Tsatsi v Virgin Active and Others[25]; the fact that the court, having addressed the aspect of points in limine, did not proceed to make express rulings on them turns on nothing given the fact that the points in limine were dismissed in any case. Concerning merits; the Court found that the First Applicant did not prove its case against the Respondent; hence the order granted. The Court does not deem it likely that another court would arrive at a different decision. The application for leave to appeal therefore stands to be dismissed.

53.  It is trite that the court is entitled to exercise a judicious discretion where it regards costs. It is indeed so that a situation where any of the parties ends up mulcted due to the granting of cost orders has potential to undermine the attainment of equity in judicial decision-making. However, in the event where if to appeal is not granted, it would not be desirable to leave the question of costs and decided. Therefore, it is desirable that the Court includes an order on costs in these proceedings.

54.  In the result the court makes the following order:

ORDER.

1. The application for leave to appeal is dismissed with costs.






T.A. Maumela.

Judge of the High Court of South Africa.

 

 

 

 

 

 

 

 

 

 

 

 

 

Judgment reserved:                  20 May 2020

 

 

Judgment delivered:                 14 September 2020

 

 

 

 

REFERENCES

 

 

For the Applicant:             Adv. Sandra Cliff

Instructed by:                    Stopforth Swanepoel & Brewis Inc.

 

 

 

For the Respondent:         Mr. L E Sekele (Section 4(2) of Act 62) of 1995

Instructed by:                   Sekele Attorneys

 

 

 

 

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