Mike Buyskes Construction (Pty) Ltd and Another v Brookhaven Projects CC (28384/14) [2017] ZAGPJHC 91 (9 March 2017)

REPUBLIC

OF SOUTH AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 28384/14

Reportable: No

Of interest to other judges: No

Revised.

9/3/2017

In the matter between:

MIKE BUYSKES CONSTRUCTION (PTY) LTD First Applicant

DEREK BONHEIM Second Applicant

and

BROOKHAVEN

PROJECTS CC Applicant

JUDGMENT ON

APPLICATION FOR LEAVE TO APPEAL

MAKUME, J:

[1] On the 17th April 2015 in an application for review before me I found in favour of the Respondent and set aside the arbitration award of the Second Applicant. This application for leave to appeal is against that judgment.

[2] The Applicants wish to pursue the appeal before the Supreme Court of Appeal alternatively before the Full Bench of this Division. Section 17(1) of the Supreme Court Act No 10 of 2013 enjoins me to grant the application if I am of the opinion that the appeal would have a reasonable prospect of success or that there is some other compelling reason why the appeal should be heard.

[3] I have listened to the submissions by counsel on behalf of the litigants in this matter and in particular the Applicants drew my attention to paragraphs 22 and 33 of my judgment and argue that my judgment is based on a wrong analysis of facts. In paragraph 22 I referred to the letter of the 7th May 2012 which should in fact be the 7th May 2013 as being a letter from the Respondent’s attorneys (Applicant in the court a quo) when in fact it was the other way round. That letter emanated from the First Respondent. In paragraph 33 it was argued that I made a finding that good cause had been shown to grant condonation and did not furnish reasons for my finding.

[4] My attention was also drawn to the findings in the matter of Florence v Government of RSA 2014 (6) SA 456 and at page 492 paragraph [114] wherein Moseneke ACJ held as follows:

“[114] However when a court of first instance even though vested with a strict or true discretion has not acted in a judicial manner, an appeal court may intrude to ensure a lawful and just outcome. The intervention would be in the interest of justice as the appeal court imposes fidelity to the law. The appellate court would be doing no more than correcting an instance where –

‘the court has exercised its statutory power capriciously or was moved by a wrong principle of law or an incorrect appreciation of the facts or has not brought its unbiased judgment to bear on the issue, or has not acted for substantial reason.’”

[5] I am satisfied that the appeal is fairly arguable even though I still hold the view that there is no prospect of success. However, the issues raised in the application for leave to appeal have persuaded me to come to the conclusion that there are some compelling reasons why I should grant leave to appeal and I accordingly do so.

ORDER

[6]

6.1 Application for leave to appeal is granted.

6.2 The appeal shall be heard by the Full Bench of this Division.

6.3 The costs of this application shall be costs in the appeal.

DATED at JOHANNESBURG on this the day of MARCH 2017.

___________

M A MAKUME

JUDGE OF THE HIGH

COURT OF SOUTH AFRICA

COUNSEL FOR THE

APPLICANTS ADV L W DE KONING SC

INSTRUCTED BY

MESSRS MARK-ANTHONY BEYL ATTORNEYS

JOHANNESBURG

Tel: (011) 333-7790

COUNSEL FOR THE

RESPONDENT ADV G D WILKINS

INSTRUCTED

BY

MESSRS VAUGHAN HATTINGH ATTORNEYS

LANSERIA

Tel: (011) 648-9500

DATE OF HEARING

DATE OF JUDGMENT