Dzuni Properties CC and Another v Italite Investments (Pty) Ltd ; In re: Italite Investments (Pty) Ltd v Dzuni Properties CC and Another (2021/6114) [2023] ZAGPJHC 734 (25 July 2023)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2021/6114

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

DATE SIGNATURE

In the matter between

In re the matter between:

JUDGMENT

MOORCROFT AJ:

Summary

Application for leave to appeal - section 17(1)(a)(i) of Superior Court Courts Act, 10 of 2013 – No reasonable prospects of success on appeal – application dismissed

Order

[1] In this matter I make the following order:

1. The application for leave to appeal is dismissed;

2. The applicants (respondents in the main application) are ordered to pay the costs of the application on the scale as between attorney and client.

[2] The reasons for the order follow below.

Introduction

[3] This is an application for leave to appeal in terms of section 17(1)(a)(i) of the Superior Courts Act, 10 of 2023 against a decision¹ handed down by me on 23 May 2023.

[4] I refer to the parties as they were referred to in the judgment in the main application.

[5] Section 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013 provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. Once such an opinion is formed leave may not be refused. Importantly, a Judge hearing an application for leave to appeal is not called upon to decide if his or her decision was right or wrong.

[6] In Ramakatsa and others v African National Congress and another ² Dlodlo JA placed the earlier authorities in perspective. He said:

“[10] … I am mindful of the decisions at high court level debating whether the use of the word ‘would’ as opposed to ‘could’ possibly means that the threshold for granting the appeal has been raised. If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test of reasonable prospects of success postulates 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 other words, the appellants in this matter need to convince this Court on proper grounds that they have prospects of success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects of success must be shown to exist.”³

Condonation for the late filing of the notice of appeal

[7] The judgment in respect of which leave to appeal is sought was handed down on 10 October 2022. It was published on CaseLines on that day, and circulated by electronic mail to the email addresses of the parties’ that were on record. The application for leave to appeal was filed on 23 November 2023 after the expiry of the 15-day period in Rule 49(1)(b). The respondents failed to apply for condonation but allege in the notice of application for leave to appeal that the judgment only came to their notice on 17 November 2022.

[8] I am mindful of the fact that there were computer problems in the first half of October 2022 and that it is possible that the judgment did not, in fact, come to the notice of the respondents. It is regrettable that there is no application for condonation but in the interest of justice (so as not to prejudice the respondents) and because of the uncertainty I deal with the matter on the basis that the application was timeously made.

[9] The applicant’s counsel addressed me on other perceived shortcomings in the notice of application for leave to appeal. There was no prejudice to the applicant arising from these perceived shortcomings and I do not deal with them.

The grounds of appeal

[10] The grounds of appeal are set out as follows in the notice of application for leave to appeal:

[11] I dealt in the judgment with the application for a postponement in paragraphs 4 to 9 of the judgment, and specifically with the merits of the application in paragraph 8.

[12] The main application was served on 15 February 2021 and notice of intention to oppose was delivered on 17 February 2021. The answering affidavit was delivered on 8 June 2021 and the replying affidavit on 30 June 2021. The applicant filed heads of argument on 5 August 2021 and the respondents’ heads of argument followed on 18 May 2022, nine months later. The application was argued in October 2022.

[13] The legal principles applicable to an application for a postponement have been dealt with in a number of decisions⁴ and need not be repeated here. The judicial discretion was exercised judicially and on the correct facts as presented by the parties, and on the correct legal principles.⁵ I may add that the respondents argued that the application for a postponement was not formally opposed as the applicants elected not to file an answering affidavit. This argument is wrong – the applicant did oppose the application and elected not to file an answering affidavit because it had no opportunity to do so.

[14] The respondents also argued that I misdirected myself in failing to take into account that the enforcement of contractual terms is “subject to prior enquiry.”

[15] I dealt with the agreement and the breach in paragraphs 10 to 15 of the judgment. The interpretation of contracts in the constitutional era was dealt with by the Constitutional Court in, inter alia, Barkhuizen v Napier⁶ and Beadica 231 CC and Others v Trustees, Oregon Trust and Others.⁷ The respondents have not identified any grounds for refusing to enforce the contract.

[16] I am of the view that there no reasonable prospects of success on appeal and I therefore make the order set out in paragraph 1 above. The agreement between the parties provides for payment of costs on the attorney and client scale⁸ and it is appropriate to provide for costs on this scale.

J MOORCROFT

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

JOHANNESBURG

Electronically submitted

Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 25 JULY 2022