Dlwathi v Daytona (Pty) Ltd; In Re: Daytona (Pty) Ltd v Dlwathi; In Re: Dlwathi v Hyde Park Auto (Pty) Ltd t/a Sandton Auto and Others (51100/2021) [2023] ZAGPJHC 800 (10 July 2023)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

Case No: 51100/2021

Date of hearing: 8 June 2023

Judgment: 10 July 2023

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES / NO

(3) REVISED.

________________

DATE SIGNATURE

IN THE MATTER BETWEEN:

STEVE DLWATHI APPLICANT (IN THE

APPLICATION FOR LEAVE TO APPEAL)

AND

DAYTONA (PTY) LTD RESPONDENT (IN THE

APPLICATION FOR LEAVE TO APPEAL)

IN RE:

DAYTONA (PTY) LTD APPLICANT

AND

STEVE DLWATHI RESPONDENT

IN RE:

STEVE DLWATHI APPLICANT

AND

HYDE PARK AUTO (PTY) LTD t/a RESPONDENT

SANDTON AUTO

DAYTONA (PTY) LTD FIRST RESPONDENT

SHAREHOLDERS OF THE SECOND RESPONDENT

FIRST RESPONDENT

ABRINA 3765 (PTY) LTD THIRD RESPONDENT

T/A BMW SANDTON

SHAREHOLDERS OF THE FOURTH RESPONDENT

THIRD RESPONDENT

THE SHERIFF OF THE COURT FIFTH RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

Strijdom AJ

1. This is an application for leave to appeal the whole of my judgment to the Full Court of this division, handed down on 28 March 2023.

2. The applicant’s grounds of appeal are set out in the application for leave to appeal.

3. Section 17(1)(a) of the Superior Courts Act 10 of 2013 provides that leave to appeal may only be granted where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success, or if there is some compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

4. Each application for leave to appeal must be decided on its own facts. Some examples of what will be regarded as compelling reasons have been identified. They include:

(a) The substantial importance of the case to the applicant or to both the applicant and respondent.

(b) The decision sought to be appealed against, involves an important question of law.

(c) The administration of justice, either generally, or in the particular case concerned, requires the appeal to be heard.

(d) An issue of public importance, which will have an effect on future matters.

5. With the enactment of section 17 of the Act, the test has now obtained statutory force and is to be applied, using the word ‘would’ in deciding whether to grant leave. The test is: ‘would another court come to a different decision.’

6. In the decision of Mont Chevaux Trust v Goosen and 18 Others,¹ the Court held that the wording of the subsection raised the bar for the test that has now to be applied to any application for leave to appeal.

7. It was decided in Notshokovu v S² that an appellant faces a higher and stringent threshold in terms of the Act.

8. 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.³

9. In respect of all the grounds of appeal raised by the applicant, my judgment deals with the facts and the law as presented by the parties and how the Court arrived at each conclusion on the contentions raised by the parties.

10. When the facts and the law were examined, there is in my view no sound or rational basis for the conclusion that another Court would come to a different decision. I am also of the view that there are no compelling reasons why the appeal should be heard.

11. In the result the application for leave to appeal is dismissed with costs.

________________________

STRIJDOM JJ

ACTING JUDGE OF

THE HIGH COURT

OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

JOHANNESBURG

Appearances:

For the Applicant: In person (Adv S Dlwathi)

For the Respondent: Adv U. van Niekerk

Instructed by: Alan Allschwang & Associates Inc.