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South Africa Judgment

South Gauteng High Court, Johannesburg

Black Bond Surfacing (Pty) Ltd v Dynapac SA (Pty) Ltd (59158/2021) [2022] ZAGPJHC 974 (7 December 2022)

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Source document

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 Venter

Dynapac SA (Pty) Ltd

Respondent Counsel: SG Dos Santos

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment on Rei Vindicatio

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2022] ZAGPJHC 974

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 17(1)(a)(i) of the Superior Courts Act

Legislation

Legislation referenced in the available case record.

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