REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED. …………………….. ………………………... DATE SIGNATURE
CASE NO: 25241/2021
In the matter between:
SOHO NAILS WAXING BEAUTY (PTY) LIMITED | Appellant |
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CGS SHOPFITTERS CC | Respondent |
Coram: Dlamini J
Date of hearing: 7 October 2022 – in a ‘virtual Hearing’ during a videoconference on Microsoft Teams digital platform.
Date of judgment: 25 October 2022
This judgment is deemed to have been delivered electronically by circulation to the parties’ representatives via email and shall be uploaded onto the caselines system.
JUDGMENT
LEAVE TO APPEAL
DLAMINI J
[1] This an application for leave to appeal my judgment that I handed down on 8 September 2022.
[2] The matter has a long history going back to a default judgment that was granted against the applicant on 14 November 2018.
[3] It is common cause that when the matter came before me, the parties agreed that only the point in limine, wether this rescission application is incomptant, should be argued as this will have the effect of disposing the matter without dealing with the merits thereof.
[4] The numb of the issue is whether Judge Senyatsi had already made a ruling that a further rescission application was incompetent.
[5] It is trite that for an application for leave to appeal to be successful it is required of the parties seeking such leave to demonstrate that there are reasonable prospects that another Court would come to a different conclusion to that reached in the judgment that is sought to be taken on appeal.
[6] The provisions of section 17 of the Supreme Court Act has now elevated the test to be applied for granting of leave to appeal. The use of the word “would” when considering the prospects of success in section 17 (1)(a)(i) , now imposes a more stringent and vigorous threshold.
[7] I have read the heads of argument and heard and submissions of Counsel for both parties .
[8] The honourable Senyatsi J found that another rescission application is incompetent. Futher that application to rescind the judgment is impermissible.
[9] It is my considered view there is no ambiguity in Judge Senyatsi’s judgment . Unless it is reviewed, appealed and set aside, the judgment remains valid and should be followed.
For all the reasons stated above and in my judgment, I make the following order:
ORDER
The application for leave to appeal is dismissed with costs
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DLAMINI J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date of hearing: 7 October 2022
Delivered: 25 October 2022
For the Applicants: Adv AJ Venter
Email: ajventer@law.co.za
Instructed by: Martins Weir-Smith
For theRespondent: SG Dos Santos
Email: suzydsantos@gmail.com
Instructed by: James Bush