Black Bond Surfacing (Pty) Ltd v Dynapac SA (Pty) Ltd (59158/2021) [2022] ZAGPJHC 974 (7 December 2022)
- Citation
- [2022] ZAGPJHC 974
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Dlamini
- Case number
- 59158/2021
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Dlamini
- Case number
- 59158/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant's claim of material disputes of fact was without merit and was intended only to avoid the obligation to return the respondent's machinery. The facts were common cause, and the appellant failed to demonstrate reasonable prospects that another court would reach a different conclusion. The application for leave to appeal did not meet the elevated threshold set by section 17 of the Superior Courts Act. Accordingly, the application was dismissed with costs.
Court disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
02
Material facts
Parties
Black Bond Surfacing (Pty) Ltd
Appellant Counsel: Adv AJ VenterDynapac SA (Pty) Ltd
Respondent Counsel: SG Dos Santos03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Rei Vindicatio
04
Questions and positions
Legal issues
- 01
Whether the appellant has demonstrated reasonable prospects that another court would reach a different conclusion.
- 02
Whether there is a material dispute of facts warranting referral to trial for oral evidence.
- 03
Whether the application for leave to appeal should be granted.
Party arguments
- Applicant
- The appellant argued that there are material disputes of fact in the case, which necessitate referral to trial for oral evidence. The appellant contended that these disputes undermine the correctness of the judgment and that there are reasonable prospects that another court would reach a different conclusion.
- Respondent
- The respondent maintained that the facts are common cause and that the appellant's claim of material disputes is without merit. The respondent argued that the application for leave to appeal is solely intended to delay the appellant's obligation to return the machinery and that there are no reasonable prospects of success.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a)(i) of the Superior Courts Act
The test for granting leave to appeal requires the applicant to show reasonable prospects that another court would come to a different conclusion.
- 02
Section 17(1)(a)(i) of the Superior Courts Act
The threshold for granting leave to appeal is now more stringent and vigorous due to the use of the word 'would' in the statute.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant's claim of material disputes of fact was without merit and was intended only to avoid the obligation to return the respondent's machinery. The facts were common cause, and the appellant failed to demonstrate reasonable prospects that another court would reach a different conclusion. The application for leave to appeal did not meet the elevated threshold set by section 17 of the Superior Courts Act. Accordingly, the application was dismissed with costs.
Obiter and limits
- The court emphasized that the threshold for granting leave to appeal has become more stringent under the current statutory framework.
- The appellant's attempt to raise disputes of fact was viewed as a tactic to delay compliance with the original order.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 59158/2021
REPORTABLE:
NO
OF INTEREST TO OTHER JUDGES: NO
REVISED.
In the matter between:
BLACK BOND SURFACING (PTY)
LTD
Appellant
and
DYNAPAC SA (PTY)
LTD
Respondent
Coram:
Dlamini J
Date of hearing:
15 November 2022 – in a ‘virtual Hearing’ during a videoconference on Microsoft Teams digital platform.
Date of delivery of Judgment: 07 December 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 9 August 2022.
[2] This was rei vindicatio application for the return of certain equipment instituted by the respondent against the appellant herein
[3] The background facts are commom cause. However, the appellant’s main arguments is that there are material dispute of facts in this case, as a result, the appellant submits that the application should be referred to trial for viva voce evidence.
[4] It is trite that for an application for leave to appeal to be successful, the appellant must demonstrate that there are reasonable prospects that another Court would come to a different conclusion to that which was reached in the judgment that is sought to be taken on appeal.
[5] 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.
[6] In my view, the appelant’s claim of the existence of material dispute of facts has no merit and it is dismissed, this claim is solely intended to avoid appellant’s obligation to return the respondent’s machinery.
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
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date of hearing:
15 November 2022
Delivered:
7 December 2022
For the Appellant:
Adv AJ Venter
Email:
ajventer@law.co.za
Instructed by:
Martins Weir-Smith
For the Respondent: SG Dos Santos
Email:
suzydsantos@gmail.com
Instructed by:
James Bush
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