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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

21/9/2020

 

Case number:  49661/2017

Date:

 

In the matter between:

 

ON SITE GAS INERNATIONAL (PTY) LTD                                                       APPLICANT

(Registration Number: 1993/004657,07)

 

And

 
TILT COOL TECH CC                                                                                           RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

TOLMAY, J:

[1]         This matter was heard by way of a virtual hearing on the Zoom platform. The Applicant (OSG) sought leave to appeal against the whole of the judgment handed down in favour of the Respondent (Tilt) on 21 May 2020, to the Supreme Court of Appeal alternatively the Full Court. During argument Mr Rossouw (Sc) on behalf of OSG conceded that the matter does not deserve the attention of the SCA.

[2]         Section 17(1)(a)(i) of the Superiors Courts' Act. provides that leave to appeal may only be granted when the Judge or Judges concerned are of the view that the appeal would have a reasonable prospect of success. It is by now trite that the Superior Courts' Act, raised the bar for granting leave to appeal, by use of the word "would" in the aforementioned section.[1]

[3]         I do not deal with .each and every ground of appeal as the judgment speaks for itself and I deem it inappropriate to revisit these issues dealt with in the judgment.

[4]         In this matter only Mr Giddish on behalf of OSG testified. As fully set out in the judgment he made concessions, contradicted himself and even perjured himself. If I understood Mr Rossouw (Sc) correctly he now wants the Court to ignore the concessions and to a large extent the evidence, which explained and placed the documents relied on in context. It must be noted that Mr Rossouw (Sc) did not appear on behalf of OSG at the trial. He also conceded not having had access to a transcript and must therefore have relied on what his junior Mr Lauw, who did appear at the trial, or Mr Giddish told him, as well as the pleadings and documents.

[5]         Contrary to the approach followed in argument, namely reliance on the pleadings and documents alone, evidence must be considered holistically as was done and explained in Smith v S[2]

[7]           It  was  contended  on  behalf  of  the  respondent  that,  it  was naturally expected that there would be contradictions between the two young complainants. However, the trial court examined the evidence tendered by both the State and the defence holistically and not on a piece meal basis. Counsel for the respondents argued that, notwithstanding  the  concession  of  the  existence  of contradictions, same did not destroy the evidence of the complainants as supported by the medical evidence. Counsel further argued that there was no collusion between the two complainants as they independently and separately recollected what had happened and reported to their respective parents.”[3]

[6]         The conclusions that the Court came to must be seen in the context of the fact that various concessions were made by Mr Giddish. Regarding claim one he conceded that OSG owes Tilt even more than the amount claimed. Counsel's contention that Mr Stephens relied on hearsay evidence is without any merit. Mr Stephens himself drafted the invoices, sent them to OSG and these invoices were never questioned in emails to Mr Stephens from OSG. The mere absence of source documents did not render the invoices in the light of Mr Stephens's evidence and Mr Giddish's concessions as hearsay. In my view the issue of hearsay is nothing but a red herring in the absence of a proper defence.

[7]         The reason why the Court granted the claims and dismissed the counterclaims are fully set out in the judgment and need no further mention.

[8]         For the first time in the notice of appeal it was alleged that Mr Giddish felt intimidated by the Court, and seemingly therefore made concessions. It must be noted that no objection was raised during the trial, nor during argument, that the Court intimidated the witness. Mr Rossouw's did not raise this point in his argument. It would however be inappropriate to merely ignore the allegation. In my view this belated complaint is an attempt to avoid responsibility for the evasiveness and contradictory evidence that was given by Mr Giddish, most of which was unsolicited by either the Court, or counsel for the Plaintiff.

[9]          Tilt asked for costs on attorney and client scale. The application was launched on 24 June by OSG. This was during recess. On 24 July 2020 my registrar sent an email requesting OSG to upload the matter to CaseLines, so that a date could be allocated. During August 2020 Tilt took further steps to get the matter ready for a hearing and uploaded the matter on Caselines, because OSG's legal representatives failed to respond to my registrar's e-mail, or to upload the matter on Caselines. After this a date for the hearing was then allocated by the Court. It would seem that OSG delayed the hearing of the application for leave to appeal. Despite this I will not grant attorney and client costs in the exercise of my discretion, as Tilt could also have acted more promptly ,if they wanted the matter to be finalised sooner.

[10]      In my view this is an unmeritorious application for leave to appeal with no reasonable prospect of success.[4]

[11]      I make the following order:

11.1      The application for leave to appeal is dismissed.

11.2      The Applicant is  ordered to   pay the costs of the application.

 

 

 

R G TOLMAY

JUDGE OF THE HIGH COURT

 

 

 

 

DATE OF HEARING:                                 15 SEPTEMBER 2020

DATE OF JUDGMENT:                             21.9.2020

 

ATTORNEY FOR APPLICANT:               DEMPSTER McKINNON INC

ADVOCATE FORAPPLICANT:                ADV ROSSOUW (SC)

ADV M LOUW

 

ATTORNEY FOR RESPONDENT:          VAN DER WAL SLADE

RAMABULANA INC

ADVOCATE FOR RESPONDENT:         ADV C WOODROW

 

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