Rustenburg Local Municipality v Glencore Operations South Africa (Pty) Ltd and Others (074616/2023) [2024] ZAGPJHC 1731 (17 May 2024)

 

REPUBLIC OF SOUTH AFRICA

 

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

Case Number: 074616/2023

 

1. REPORTABLE: YES / NO

2. OF INTEREST TO OTHER JUDGES: YES/NO

3. REVISED: YES/NO

17 MAY 2024 ML SENYATSI

DATE SIGNATURE

45

 

 

 

In the matter between:

 

 

 

In the matter between:

RUSTENBURG LOCAL MUNICIPALITY and GLENCORE OPERATIONS SOUTH AFRICA (PTY) LTD CONSOLIDATED METALLURGICAL INDUSTRIES (PTY) LTD MERAFE FERROCHROME AND MINING (PTY) LTD MERAFE RESOURCES LIMITED

Applicant   First Respondent   Second Respondent   Third Respondent Fourth Respondent

JUDGMENT

(Leave to Appeal Application)

SENYATSI, J

[1] This an application for leave to appeal to the Supreme Court of Appeal alternatively the Full Court of this Court against the whole of the judgment and orders I handed down on 10 November 2023(the decision). The applicant raises several grounds of appeal which will not be repeated in this judgment.

[2] The applicant contends that I ought to grant leave to appeal because there are reasonable prospects that the appeal would succeed as contemplated by s 17(1)(i) of the Superior Courts Act, 10 of 2013 (the Act) and that there are compelling reasons why an appeal should be held as contemplated by s 17(1)(a)(ii) of the Act.

 

[3] The requirement and the test for granting leave to appeal are regulated by section 17(1)(a) of the Superior Courts Act No. 10 of 2013 which states as follows:

“(1) Leave to appeal may only be given where the judge or judges concerned are 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.”

 

[4] In Mont Chevaux Trust v Goosen and Others¹ Bertelsman J interpreted the test 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…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.”

 

[5] In Acting National Director of Public Prosecutions and Others v Democratic Alliance: In re: Democratic Alliance v Acting National Director of Public Prosecutions² the court acknowledged the test by Bestertsman J.

[6] In Mothule Inc Attorneys v The Law Society of the Northern Provinces and Another³, 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 possible of success.”

[7] In Matoto v Free State Gambling and Liquor Authority⁴, 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.”

[8] In S v Notshokovu⁵ 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”

[9] In S v Smith Plasket⁶ 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.”

[10] In Pretoria Society of Advocates and Others v Nthai⁷ 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.”

 

[11] 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.

[12] Having regard to the grounds of appeal by the applicants and supplemented on the heads of argument filed of record, as well as the reasons advanced in the judgment, the court is not persuaded that there is a reasonable prospect that the appeal would succeed or that there are compelling reasons for the appeal to be heard. The application for leave to appeal must therefore fail.

Order

[13] The following order is made:

(a) The application for leave to appeal the decision is dismissed with costs.

 

__________________________

ML SENYATSI

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, JOHANNESBURG

Delivered: This Judgment was handed down electronically by circulation to the parties/ their legal representatives by email and by uploading to the electronic file on Case Lines. The date for hand-down is deemed to be 17 May 2024.

 

 

Appearances:

For the applicant (RLM): Adv IV Maleka SC

Adv T Scott

Instructed by AB Scarrott Attorneys

 

For the respondent (Glencore): Adv AC Botha SC

Adv MFB Clark

Instructed by Werksmans Attorneys

 

Date of Judgment reserved: 29 February 2024

 

Date of Judgment: 17 May 2024