Talacar Holdings Pty Ltd v City of Johannesburg Metropolitan Municipality N.O. and Others (44294/2020) [2023] ZAGPJHC 570 (25 May 2023)

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CITY OF JOHANNESBURG First Respondent

METROPOLITAN MUNICIPALITY

FLOYD BRINK N.O Second Respondent

FLOYD BRINK Third Respondent

Neutral Citation: Talacar Holdings Pty Ltd v City of Johannesburg Metropolitan Municipality and Others (Case No: 44294/2020) [2023] ZAGPJHC 570 (25 May 2023)

Delivered: By transmission to the parties via email and uploading onto Case Lines

the Judgment is deemed to be delivered.

JUDGMENT

(Leave to Appeal Application)

SENYATSI J:

[1] This is an application for leave to appeal the judgement I granted on the 8 March 2023 whereby a rule nisi by Dlamini J was discharged and I refused to find the third party/proposed fourth respondent (Mr Melusi Mlandu N.O) guilty of perjury. I ordered the applicant to pay the costs of the application.

[2] The judgment dealt with whether or not the rule nisi issued by Dlamini J should be made final. After considering the papers and the law, I held that the Municipal Manager was not in contempt of the court order of Siwendu J and Opperman J and I discharged the Dlamini J order which sought to imprison the Acting Municipal Manager of the first respondent.

[3] The applicant in this leave to appeal application raises a number of grounds upon which it contends that the court erred in refusing to make the Dlamini J order final and by not finding the Acting Municipal Manager guilty of perjury.

[4] The applicant contends that had the court fully considered the fact that two previous orders by Siwendu J and Opperman J, it would have made the rule nisi final.

[5] The issue for determination is whether the appeal would have a reasonable prospect of success. If the answer is positive to this question, then leave to appeal should be granted, but if it is negative, application for leave to appeal must be refused.

[6] The application for leave to appeal is regulated by s 17(1)(a) (i) and (ii) of the Superior Courts Act number 10 of 2013 (“the Act”) which provides as follows:

“17. (1) leave to appeal may only be given where the judge or judges concerned are of the opinion that-

1. (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;”

[7] Our courts have given the true meaning of what is sought to be proven as stated in section 17(1). In Acting National Director of Public Prosecutions and Others v Democratic Alliance v Acting National Director of Public Prosecutions and Others¹ the court said the following:

“The Superior Court has raised the bar for granting leave to appeal in The Mont Chevaux Trust (IT 201/28) v Tina Goosen & 18 Others 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 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.”

[8] In Mount Chevaux Trust v Goosen², the court explains the test as follows:

“[3] The principle to be adopted in applications for leave to appeal has been codified in section 17(1) of the Superior Courts Act 10 of 2013 (‘the new Act’) and is, inter alia, ‘whether the appeal would have a reasonable prospect of success’. Bertelsmann J, in The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others LCC14R/2014, (an unreported judgment of this Court delivered on 3 November 2014) in considering whether leave to appeal ought to be granted in that matter, held that the threshold for granting leave to appeal had been raised in the new Act. Bertelsmann J found that the use of the word ‘would’ in the new Act indicated a measure of certainty that another Court will differ from the Court whose judgment is sought to be appealed against. Consequently, the bar set in the previous test, which required ‘a reasonable prospect that another Court might come to a different conclusion’, has been raised by the new Act and this then, is the test to be applied in this matter.”

[9] In Matoto v Free State Gambling and Liquor Authority³, the court referred to Mount Chevaux Trust with approval and said that:

“…there can be no bout that the bar for granting leave to appeal has been raised. The use by the legislature of the word ‘only’ … is a further indication of a more stringent test.”

[10] In S v Notshokovu⁴ the Supreme Court of Appeal reaffirmed that:

“an appellant …faces a higher and stringent threshold in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959”.

[11] In S v Smith Plasket⁵ AJA explained the meaning of ‘a reasonable prospect of success’ as follows:

“What the test of reasonable prospect of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that these prospects are not remote but have a realistic chance of succeeding. More is required to be established than there is mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[12] In Pretoria Society of Advocates and Others v Nthai⁶ the court held that:

“The enquiry as to whether leave should be granted is twofold. The first step that a court seized with such application should do is to investigate whether there are any reasonable prospects that another court seized with the same set of facts would reach a different conclusion. If the answer is in the positive the court should grant leave to appeal. But if the answer is negative, the next step of the enquiry is to determine the existence of any compelling reason why the appeal should be heard.”

Based on the authorities referred to above it is apparent that our courts have been consistent in the application of the test on whether leave to appeal should be granted.

[13] The liberal approach to grant leave by courts is discouraged as being inconsistent with s17 of the Act. For instance, in Mothule Inc Attorneys v The Law Society of the Northern Provinces and Another⁷, the Supreme Court of Appeal stated as follows regarding the trial court’s liberal approach on granting leave to appeal:

“It is important to mention my dissatisfaction with the court a quo’s granting of leave to appeal to this court. The test is simply whether there are any reasonable prospects of success in an appeal. It is not whether a litigant has an arguable case or mere possibility of success.”

[14] More importantly, the approach is now also developed that if the inquiry into whether the appeal would not have a reasonable prospect of success, the court must now also inquire whether it is in the interests of justice that the appeal should be heard.

[15] In the instant case, I am of the view that the appeal would have a reasonable prospect of success. Accordingly, the requirements of s17 of the Act have been met and application for leave to appeal should be favourably considered.

F. ORDER

[16] The following order is made:

1. Application for leave to appeal is granted and the costs will be the costs in the appeal.

ML SENYATSI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

DATE OF APPLICATION: 24 April 2023

DATE JUDGMENT DELIVERED: 25 May 2023

APPEARANCES

Counsel for the Applicant: Adv WH Pocock with Adv C Opperman

Instructed by: Di Siena Attorneys

For the 1^st; 2^nd and 3rd Respondents: Adv F Magano

Instructed by: Nozuko Nxusani Inc

1 (1957/09) [2016] ZAGPPHC 489 (24 June 2016)

2 2014 JDR 2325 (LCC)

3 [2017] ZAFSHC 80 at para 5

4 [2016] ZASCA 112 para 2

5 2012 (1) SACR 567 (SCA) at para 7

6 2020 (1) SA 267 (LP) at [4]

7 (213/16) [2017] ZASCA 17 (22 March 2017)