Fourouclas and Another v Pretorius (10619/10) [2017] ZAGPPHC 843 (16 November 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 10619/10

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between

COSTAS FOUROUCLAS 1st

APPLICANT

JOHANNES

JACOBUS OELOFSE N.O 2nd

APPLICANT

And

ANDRe

PRETORIUS RESPONDENT

Coram:

HUGHES J

REASONS

HUGHES J

[1] This is an application for leave to appeal against the whole of my judgment and order handed down on 13 October 2017.

[2] The legislation dealing which deals with the circumstances upon which leave to appeal may be granted is set out in section 17 (1) of the Superior Courts Act 1O of 2013 (the Superior Courts Act). What is specifically relevant in this case, is section 17

(1) (a). I set out section 17 (1) in its entirety below:

"Section17 (1)

(1) Leave to appeal may only be given where the judge or judges concerned are of 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;

(b)the decision sought on appeal does not fall within the ambit of section 16;and

(c)where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties." [My emphasis]

[3] The test which was applied previously in applications of this nature was whether there were reasonable prospects that another court may come to a different conclusion. See Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 8908. What emerges from section 17 (1) is that the threshold to grant a party leave to appeal has been raised. It is now only granted in the circumstances set out and is deduced from the words ' only' used in the said section. See The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para [6], Bertelsmann J held as follow:

"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, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose iudgment is sought to be appealed against." [My emphasis].

[4] The grounds for leave to appeal are to a large extent factual asserting that this court's reasoning was erroneous and that I failed to take into consideration or give sufficient weight to other factors. What I do not propose to do is to set out the exhaustive

grounds of appeal again or repeat that which is set out in my judgment, in as much as that which was relevant was dealt with in the judgment. I am mindful of the fact that an appeal is solely aimed at an order of a court and not its reasoning.

[5] The applicants argue that in terms of section 17 (1) (a) they should be granted leave to appeal on the grounds set out in their notice for leave to appeal as their appeal 'would have a reasonable prospect of success' in another court.

[6] In S v Smith v S 2012 (1) SACR 567 (SCA) 570 at para [7] Plasket AJA had the opportunity to consider what constitute reasonable prospects of success and he held as follows:

"[7] What the test of reasonable prospects 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, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a 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." [My emphasis]

[7] The issue of prescription has been held in the highest court of the land, the Constitutional Court, to be a limitation on the right to access to the courts. Matters under the realm of prescription, have a bearing on the Constitution and the Bill of Rights. In my view, matters dealing with prescription deal with important rights and issues under section 34 of the Constitution. The right of access to the courts is fundamental right and an important issue. It is in the interest of Justice that leave to appeal be granted as the applicants do have reasonable prospects of success. See Mtokonya v Minister of Police [2017] ZACC 33 at para [9] - (10).

[8] Consequently the following order is made.

[8.1] The application for leave to appeal for the first and second applicant is granted to the Full Court of this division. The costs of this application are to be costs in the appeal.

_______

W. Hughes

Judge of the High Court Gauteng, Pretoria