Kgaphola Investment Holdings (Pty) Ltd v Great North Transport Limited (38767/2007) [2024] ZAGPPHC 937 (6 September 2024)
The court found that the plaintiff failed to discharge the onus of proof required to overcome an application for absolution from the instance. The grounds for leave to appeal were a repetition of arguments previously considered and did not raise any new issues or compelling reasons. The judge was not persuaded that...
Source-derived case information.
- Citation
- [2024] ZAGPPHC 937
- Parties
- Plaintiff: Kgaphola Investment Holdings (Pty) Ltd; Defendant: Great North Transport Limited
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 38767/2007
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Order of Absolution From the Instance
- Outcome
- Application for leave to appeal refused with costs.
- Judges
- A Millar
- Legal Topics
- Leave to Appeal, Absolution From the Instance, Onus of Proof, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kgaphola Investment Holdings (Pty) Ltd
Plaintiff
Great North Transport Limited
Defendant
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Order of Absolution From the Instance
Legal Issues
- 1 Whether the plaintiff has demonstrated reasonable prospects of success on appeal against the order of absolution from the instance.
- 2 Whether there is any compelling reason for leave to appeal to be granted in terms of section 17(1) of the Superior Courts Act.
Ratio Decidendi
The court found that the plaintiff failed to discharge the onus of proof required to overcome an application for absolution from the instance. The grounds for leave to appeal were a repetition of arguments previously considered and did not raise any new issues or compelling reasons. The judge was not persuaded that another court would reach a different conclusion or that there was any other compelling reason to grant leave to appeal. Accordingly, the application for leave to appeal was refused with costs, including the costs of counsel on scale C.
Court Disposition
Application for leave to appeal refused with costs.
Orders
- The application for leave to appeal is refused with costs, including the costs of counsel on scale C.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. 38767/2007
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
DATE: 6 September 2024
SIGNATURE:.
In the matter between: KGAPHOLA INVESTMENT HOLDINGS (PTY) LTD PLAINTIFF And GREAT NORTH TRANSPORT LIMITED DEFENDANT
JUDGMENT
MILLAR J
[1] On 31 July 2024 I granted an order of absolution from the instance with costs. The Plaintiff has applied for leave to appeal against that order. It is opposed.
[2] For convenience I will refer to the parties as they were in the main case, as the plaintiff and the defendant respectively.
[3] The test for the granting of leave to appeal pertinent to the present matter is set out in section 17(1) of the Superior Courts Act[1] as follows:
“(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”
[4] The grounds upon which the application is brought are that the court misdirected itself in not accepting the evidence tendered on behalf of the plaintiff uncritically. Additionally, it is contended that notwithstanding their being an onus upon the plaintiff, the court ought to have ad miseracordium refused the application for absolution in the hope that the plaintiff’s case would be made out on the evidence led by the defendant. The entire application is predicated upon a narrow and self-serving interpretation of the evidence led.
[5] It is trite that it is the party who makes an allegation who bears the onus of proving it. In the present matter the plaintiff fell woefully short of doing so, so much so that the test to overcome an application for absolution was not met. I dealt with this in the reasons.
[6] I have considered the grounds upon which the application has been brought and the reasons given by me in the judgment for the order granted. The grounds are a repetition of what was argued and considered before me initially and there is no need to traverse this terrain again. I have also considered the submissions made by counsel for the granting of leave to appeal on the part of the plaintiff and those opposing the granting of leave to appeal on behalf of the defendant.
[7] I am not persuaded that another court would come to a different conclusion or that there is some other compelling reason why leave to appeal should be granted.
[8] The costs will follow the result.
[9] In the circumstances, I make the following order:
[9.1] The application for leave to appeal is refused with costs, which costs are to include the costs of counsel on scale C.
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD ON: 6 SEPTEMBER 2024 JUDGMENT DELIVERED ON: 6 SEPTEMBER 2024 COUNSEL FOR THE PLAINTIFF: ADV. P MABILO INSTRUCTED BY: TYRON I PATHER INC. REFERENCE: MR. T PATHER COUNSEL FOR THE FIRST DEFENDANT: ADV. C RIP ADV. T PILLAY INSTRUCTED BY: VENTER & DE VILLIERS REFERENCE: MR. W VENTER
[1] 10 of 2013.