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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 3232/2019

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the application for leave to appeal between:-

STEINMAN, JAN DANIEL	First Applicant
SWARICO AUCTIONEERS (PTY) LTD	Second Applicant
PIENIKA CC	Third Applicant

and

NSPCA

1st Respondent

WOLHUTER, DB	2nd Respondent
THE MEC: NORTH WEST DEPARTMENT OF RURAL ENVIRONMENT AND AGRICULTURAL DEVELOPMENT	3rd Respondent

In re

STEINMAN, JAN DANIEL	First Plaintiff
SWARICO AUCTIONEERS (PTY) LTD	Second Plaintiff
PIENIKA CC	Third Plaintiff

and

NSPCA

1st Defendant

WOLHUTER, DB	2nd Defendant
THE MEC: NORTH WEST DEPARTMENT OF RURAL ENVIRONMENT AND AGRICULTURAL DEVELOPMENT	3rd Defendant

This judgment was handed down in open court on 17 November 2023.

ORDER

The following order is made:

1. The application for leave to appeal is dismissed.

2. The applicants are ordered to pay the costs of the application for leave to appeal jointly and severally the one paying the others to be absolved.

JUDGMENT LEAVE TO APPEAL

FMM REID (WAS SNYMAN) J:

Introduction:

[1] This is an application for leave to appeal against the whole judgment handed down on 12 January 2023 in which the following order was made:

1.1. That the special plea of jurisdiction as raised by the defendants, is upheld and the Court does not have jurisdiction against the 1^st and 2^nd defendants;

1.2. That the claim against the 1^st and 2^nd defendants is dismissed for lack of jurisdiction; and

1.3. That the plaintiff is to pay the costs of the 1^st and 2^nd defendants.

[2] The applicants further appeal against the finding of the Court in relation to the claim against the 3^rd defendant, in dealing with the amendment made by the applicants (plaintiffs a quo) dated 11 May 2021. The Court obiter dictum found that the amendment, in as far as the claim remained alive against the 3^rd defendant, was irregular. No order was made to that effect.

[3] The test to be applied in an application for leave to appeal is set out in section 17(1)(a) of the Superior Courts Act 10 of 2013 which provides that:

“(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;”

(own emphasis)

[4] It is argued by Adv Wijnbeeck on behalf of the applicants that the appeal would have a reasonable prospect of success.

[5] In Erasmus Superior Court Practice CD Rom & Intranet: ISSN 1561-7476 Internet: ISSN 1561-7475, DE van Loggerenberg, Jutastat e-publications Part A, Volume 3 under the heading “Introduction, Superior Court System and Access to Superior Courts” the learned author discusses the right of a party to appeal to a higher court, and compares section 20(4) of the Supreme Court Act 59 of 1959 (repealed with effect from 23 August 2013) with section 17 of the Superior Courts Act 10 of 2013. The learned author writes as follows:

“Leave to appeal. Both Acts limit the right to appeal to a higher court against a judgment or order, either by the court appealed from or the court appealed to. This limitation was contained in section 20(4) of the Supreme Court Act 59 of 1959, and was re-enacted in section 17 of the Superior Courts Act 10 of 2013. In Besserglik v Minister of Trade, Industry and Tourism (Minister of Justice Intervening) 1996 (4) SA 331 (CC), dealing with the repealed Act, the Constitutional Court pronounced that the screening of unmeritorious appeals to prevent the flooding of the courts of appeal with hopeless cases did not constitute an infringement of the fundamental right of access to courts. The same principle applies to the new Act, save that the wording of section 17 indicates that, in the test whether a potential appeal could succeed, the bar has been raised: except in extraordinary cases, leave may be granted only if another court ‘would’ come to the conclusion that the appeal had merit. (See: Magashule v Ramaphosa  [2021] 3 All SA 887 (GJ) at para [6]; and also cited with approval in, amongst others, South African Breweries (Pty) Ltd v Commissioner of the South African Revenue Services (unreported, GP case no 3234/15 dated 28 March 2017) at para [5]; Pretoria Society of Advocates v Nthai  2020 (1) SA 267 (LP) at para [5], overruled, but not on this point, in Johannesburg Society of Advocates v Nthai  2021 (2) SA 343 (SCA)) Given the case load of all courts, the new section does meet the constitutional threshold of compliance.”

(some footnotes omitted; own emphasis)

[6] The above illustrates that the proverbial bar has been raised for an applicant in an application for leave to appeal. The test whether an appeal has any prospect of success should be applied in accordance with the specific wording of the Superior Courts Act 10 of 2013. The question that this court has to answer, is whether another court would come to a different conclusion. This implies a measure of certainty: it has to be established in an application for leave to appeal whether another court, being presented with the same issues, will come to another decision.

[7] In the matter of Makunda v South African Legal Practice Council 2021 (4) SA 292 (GP) the court considered the three bases on which an applicant might be successfully granted leave to appeal. These circumstances are:

7.1. By virtue of section 16(2)(a)(ii) of the Superior Courts Act 10 of 2013 in exceptional circumstances;

7.2. By virtue of section 17(1)(a) of the Superior Courts Act 10 of 2013 where there is a reasonable prospect of success or other compelling reason; and

7.3. By virtue of section 17(1)(b) of the Superior Courts Act 10 of 2013 with the exclusion of decisions falling in the ambit of section 16(2)(a) of the Superior Courts Act 10 of 2013.

[8] In MEC for Health, Eastern Cape v Mkhita 2016 JDR 2214 (SCA) the Supreme Court of Appeal emphasised the application for the test for leave to appeal and found as follows in paragraphs [16] to [18]:

“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal. 

[18] In this case the requirements of 17(1)(a) of the Superior Courts Act were simply not met. The uncontradicted evidence is that the medical staff at BOH were negligent and caused the plaintiff to suffer harm. The special plea was plainly unmeritorious. Leave to appeal should have been refused. In the result, scarce public resources were expended: a hopeless appeal was prosecuted at the expense of the Eastern Cape Department of Health and ultimately, taxpayers; and valuable court time and resources were taken up in the hearing of the appeal. Moreover, the issue for decision did not warrant the costs of two counsel.”

(own emphasis)

Grounds of appeal

[9] The various grounds of appeal all relate to one issue: that the court erred in the application of the legal principles in relation to jurisdiction.

[10] In order to determine whether the appeal would have a reasonable prospect of success, I have regard to the facts contained in the pleadings before court during the hearing of the special plea.

[11] These facts can be summarised as follows. The plaintiffs claim for damages suffered as a result of publications made by the defendants and as published in the Beeld Newspaper of 2 May 2019, 6 May 2019 and 27 July 2019. The claim for damages is approximately R13,000,000.00 (Thirteen Million Rand).

[12] In the particulars of claim, the applicants claim that the Court has jurisdiction on the following bases (as paraphrased by me):

12.1. That the plaintiffs are domiciled in the geographical jurisdiction of this Court;

12.2. That the inspections conducted by the respondents were done at the plaintiffs’ premises, which is in the geographical area of this Court;

12.3. That the confiscation of the animals in the care of the plaintiffs were executed in the jurisdiction of this Court;

12.4. That the Magistrate’s Court which issued the search warrants to search and confiscate animals on the plaintiffs’ premises is in the jurisdiction of this Court;

12.5. That the publications of defamatory nature were made in the jurisdiction of the Court, specifically Ditsobotla (previously known as Lichtenburg) and the surrounding areas.

[13] The applicant argues that the Court erred to find that jurisdiction of this Court does not vest in any of the grounds as set out above. It was argued on behalf of the applicant in the special pleas and in the application for leave to appeal, that the jurisdiction of the plaintiff, set out above, essentially determines the jurisdiction of the appropriate Court.

[14] The crux of the applicants’ argument, and allowing myself to “over simplify” the line of thought, is that the Court has jurisdiction on the basis that the first plaintiff opened the newspaper and read the article published by the Beeld in Lichtenburg’s Wimpy. The fact that the newspaper was read in Lichtenburg, and that Lichtenburg is in the jurisdiction of this court, is not disputed.

[15] The defendant’s special plea of jurisdiction is that the reading of the newspaper in a specific province does not vest that province with jurisdiction. The same argument applies to all the grounds mentioned in paragraph [12] above.

[16] It is argued on behalf of the applicants that the Court a quo erred in the interpretation of section 21 of the Superior Courts Act 10 of 2013 in failing to find that jurisdiction vests in all persons over all causes of action in failing to find that the Court has jurisdiction against the 1^st and 2^nd defendants, on the bases set out in paragraph [12] above.

[17] In as far as jurisdiction of the 3^rd defendant is concerned, the argument was correctly made that that the Nature Conservation Office of the 3^rd defendant is situated in North West and thereby vests this Court with jurisdiction.

[18] After careful consideration of the plaintiffs ground for jurisdiction as pleaded and argued, and the special plea raising the lack of jurisdiction, I applied the legal principles to the facts and came to the finding that this court does not have the jurisdiction to entertain the claims against the 1^st and 2^nd defendant.

[19] In paragraph [31] of the judgment, I found that “In as far as the claim against the 3^rd defendant remains alive, I proceed in dealing with the plaintiff’s notice of intention to amend dated 11 May 2021.” I found that the amended was not effected as prescribed in Rule 28 of the Uniform Rules of Court, on the basis that the amended papers were filed on 10 November 2021 thus outside the ten (10) day period allowed in Rule 28(5) after the notice of intention to amend was filed on 11 May 2021. I found that the amendment was irregular.

[20] In conclusion the claim against the 1^st and 2^nd defendants were dismissed for lack of jurisdiction and the amendment of the claim against the 3^rd defendant was found to be irregular.

[21] The principles relating to jurisdiction is well vested in our law and set out in detail in the judgment that is the subject of the application for leave to appeal. In application of the test for an application for leave to appeal, I have to find that another court would come to a conclusion that the 1^st and 2^nd plaintiffs have jurisdiction.

[22] I cannot find that another court would come to the conclusion that this court is vested with jurisdiction for any of the reasons set out in the particulars of claim and referred to in paragraph [12] above.

[23] Consequently, the application for leave to appeal falls to be dismissed.

Cost

[24] The normal order is that costs would follow the result and the successful party is entitled to recover its costs from the unsuccessful party.

[25] I find no reason why the normal principle should not find application.

[26] It follows that the plaintiffs are to pay the cost of the application for leave to appeal, the one paying the other to be absolved.

Order:

[27] I subsequently make the following order:

i) The application for leave to appeal is dismissed.

ii) The applicants are ordered to pay the costs of the application for leave to appeal jointly and severally the one paying the others to be absolved.

FMM SNYMAN

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE OF HEARING:	13 SEPTEMBER 2023
DATE OF JUDGMENT: (HANDED DOWN IN OPEN COURT)	17 NOVEMBER 2023
APPEARANCES:
COUNSEL FOR APPLICANT:	ADV BEZUIDENHOUT
ATTORNEYS FOR APPLICANT:	LABUSCHAGNE ATTORNEYS 19 CONSTANTIA DRIVE RIVIERA PARK MAHIKENG
INSTRUCTED BY:	MARSTON AND TALJAARD ATTORNEYS
1ST RESPONDENT:	MAREE & MAREE ATTORNEYS 11 AGAAT AVENUE RIVIERA PARK MAHIKENG, 2745
INSTRUCTED BY:	ANDREAS PEENS ATTORNEYS

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