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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case Number: 29047/2015

(1)  REPORTABLE: NO

(2)  OF INTEREST TO OTHER JUDGES: NO

(3)  REVISED: NO

DATE: 02 September 2024

SIGNATURE

 

In the matter between:

 

CASH CRUSADERS FRANCHISING (PTY) LTD                          1^ST Applicant

 

OSCAR JABULANI SITHOLE N. O.                                               2^ND Applicant

 

CHRISTOPHER PETER VAN ZYL N. O.                                        3^RD Applicant

 

SELBY MUSAWONKE NTSIBANDE N.O.                                     4^TH Applicant

 

and

 

MATTHEWS TUWANI MULAUDZI VIOLET                                   1^ST Respondent

 

MABONTSI MULAUDZI                                                                 2^ND Respondent

 

In re: MATTHEWS TUWANI MULAUDZI                                         1^ST Applicant

 

VIOLET MABONTSI MULAUDZI                                                    2^ND Applicant

 

and

 

CASH CRUSADERS FRANCHISING (PTY) LTD                             1^ST Respondent

 

OSCAR JABULANI SITHOLE N. O.                                                 2^ND Respondent

 

CHRISTOPHER PETER VAN ZYL N. O.                                         3^RD Respondent

 

SELBY MUSAWONKE NTSIBANDE N.O.                                       4^TH Respondent

 

THE MASTER OF THE HIGH COURT, PRETORIA                         5^TH Respondent

 

JUDGMENT ON LEAVE TO APPEAL

 

 

KHWINANA AJ

INTRODUCTION

[1]      This is an application for leave to appeal to the full bench of the above honourable court against my judgment granted on this the 06th December 2023.

 

[2]      They argue that the judge made errors in both law and fact by ruling in favour of the respondents. The respondents, however, maintain that the judge's decision was legally and factually correct.

 

[3]      Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the Superior Courts Act"), regulates applications for leave to appeal and provides:

 

'(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 ambit of section 16(2)(a); and (c) where the decision sought to be appealed does not dispose resolution of the real issues between the parties.'

 

[3]      The test in an application for leave to appeal prior to the Superior Courts Act was whether there were reasonable prospects that another court may come to a different conclusion. Section 17(1)[1] has raised the test, as Bertelsmann J, correctly pointed out in The Mont Chevaux Trust v Tina Goosen & 18 Others[2] 2014 JDR 2325 (LCC) Bretelsman J held that:-

 

'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 Cornwright & Others 1985 (2) SA 342 (T) at 343H. 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.'

 

[4]      In Westinghouse Brake and Equipment (Pty) Ltd v Builder Engineering (Pty) Ltd[3] the Appeal Court (as it then was) reiterated the general principle that in order for an applicant for leave to appeal to succeed, the applicant must demonstrate that it has a reasonable prospect of success on appeal. It was also stated that an appeal would be allowed where the matter is of great importance or where the matter is of public importance whether the court is of the view the decision might affect other questions.

 

[5]      The Supreme Court of Appeal held in Dexgroup (Pty) Ltd v Trustco Group[4] that:

 

"The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit. It should, in this case, have been deployed by refusing leave to appeal.

 

[6]      After considering the arguments presented by both the applicants' and respondents' counsel, I find no evidence that I have misdirected myself on either the facts or the law. The applicant's leave to appeal is on parts of my judgment, save to say the reasons have been given in my judgment.

 

[5]      In my view there is no reasonable prospect that another court could come to a different conclusion.

 

[5]      In the result:

 

1.       Leave to appeal is refused.

 

2.       Draft order is amended and marked X.

 

2. Applicant to pay Costs.

 

 

 

ENB KHWINANA

ACTING JUDGE OF NORTH GAUTENG

HIGH COURT, PRETORIA

 

DATE OF HEARING:	31 JULY 2024
DATE OF JUDGMENT:	02 SEPTEMBER 2024

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