MKM Attorneys v Maredi and Others; MKM Attorneys v Maredi and Others (52777-2011; 52778-2011) [2016] ZAGPPHC 74 (12 February 2016)
- Citation
- [2016] ZAGPPHC 74
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- T.M. Makgoka
- Case number
- 52777/2011
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- T.M. Makgoka
- Case number
- 52777/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant's grounds for appeal were a repetition of arguments already considered and rejected in the main judgment. The applicant failed to demonstrate any misdirection in the factual findings, particularly regarding the letter to the executor and the failure to formally terminate the attorney-client relationship. The court was not persuaded that another court would reach a different conclusion or that there were reasonable prospects of success. Accordingly, the application for leave to appeal was dismissed.
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
MKM Attorneys
Applicant Counsel: Adv. J. Vorster SCInnocentia Mosima Maredi
RespondentExecutor (in the Estate of late H.M Nkosi)
Respondent Counsel: Adv. J. ViljoenMaster of the North Gauteng High Court
RespondentNaomi Morongwa Maredi
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 2 July 2015.
04
Questions and positions
Legal issues
- 01
Whether there are reasonable prospects that another court would reach a different conclusion on appeal.
- 02
Whether the applicant's handling of the mandate constituted professional negligence.
- 03
Whether the factual findings of the trial court were vitiated by misdirection.
Party arguments
- Applicant
- The applicant contended that the test for leave to appeal remains whether there is a reasonable prospect of success, despite the wording of section 17 of the Superior Court Act. The grounds of appeal largely repeated arguments from the main application, focusing on whether the letter to the executor constituted a claim and challenging the factual findings regarding the termination of the attorney-client relationship.
- Respondent
- The respondents opposed the application, arguing that the grounds for appeal had already been fully addressed in the main judgment. They maintained that the applicant failed to formally terminate the relationship with Mrs Maredi, which prejudiced her ability to seek a second opinion, and that the letter to the executor did not amount to a valid claim. They asserted there was no misdirection in the factual findings.
05
Court’s reasoning
Legal principles
- 01
Superior Court Act 10 of 2013, s 17
Leave to appeal may only be granted where the judge is of the opinion that the appeal would come to a different conclusion, as codified in section 17 of the Superior Court Act 10 of 2013.
- 02
JMYK Investments CC v 600 SA Holdings (Pty) Ltd 2003 (3) SA 470 (W) at 472
A court of appeal will not disturb the factual findings of a trial court unless there has been a misdirection on fact. Where there is no misdirection, the presumption is that the trial court's conclusion is correct and will only be reversed if the appeal court is convinced it is wrong.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant's grounds for appeal were a repetition of arguments already considered and rejected in the main judgment. The applicant failed to demonstrate any misdirection in the factual findings, particularly regarding the letter to the executor and the failure to formally terminate the attorney-client relationship. The court was not persuaded that another court would reach a different conclusion or that there were reasonable prospects of success. Accordingly, the application for leave to appeal was dismissed.
Obiter and limits
- The use of 'would' in section 17 of the Superior Court Act may indicate a heightened threshold for granting leave to appeal compared to the common law test of reasonable prospects of success.
- Even if the test remains one of reasonable prospects of success, the applicant did not meet this threshold.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
Source and reliance status
North Gauteng High Court, Pretoria
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.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
12/2/2016
Not reportable
Not of interest to other Judges
CASE NO: 52777/2011
In the matter between:
MKM ATTORNEYS Applicant
and
INNOCENTIA MOSIMA MAREDI First
Respondent
EXECUTOR (in the Estate of late H.M Nkosi) Second
Respondent
MASTER OF THE NORTH GAUTENG HIGH COURT Third
Respondent
CASE NO: 52778/2011
NAOMI MORONGWA MAREDI First
Respondent
JUDGMENT - Leave to appeal
MAKGOKA. J
,,
[1] This is an application for leave to appeal against the judgment of this court delivered on 2 July 2015. In terms of the order of that judgment, the applicant, a firm of attorneys, was found to have been negligent in handling of the mandate entrusted to it, respectively, by the second respondents in the consolidated actions. The application is opposed by those respondents, the victorious plaintiffs in the consolidated actions.
[2] The common law test in an application for leave to appeal has always been whether there are reasonable prospects that another court, given the same set of facts, might arrive to a different conclusion. That test has been codified by s 17 of the Superior Court Act 10 of 2013, in terms of which leave to appeal may only be given where a judge is of the opinion that the appeal would come to a different conclusion. During argument I debated with Mr Vorster SC, for the applicant, whether the use of 'would' in the s 17 did not indicate a heightened threshold than the common law one of a reasonable prospect. Counsel contended that despite the wording of the section, the test remains that of reasonable prospect of success at common law.
(My underlining for emphasis).
[3] I have had careful and dispassionate regard to the applicants' grounds of appeal, which amount to no more than a regurgitation of the arguments advanced in the main application. Each of the grounds has been dealt with fully in the judgment, and it would serve no purpose to repeat what is stated there. The applicant's insurmountable obstacles include, among others, the finding that the letter it addressed to the executor of the estate of Nkosi did not constitute a claim against that estate. Factually and legally, the letter falls far short of a claim. At best, it amounts to an intention to lodge a claim. The other obstacle is the failure of the attorneys to formally terminate their relationship with Mrs Maredi, thereby creating an impression that she was still a client of the firm, thereby denying her an opportunity to timeously seek second opinion. This aspect is fully dealt with in paras [39] - [42] of the judgment.
[4] On aspect worth mentioning is that the applicant seeks to appeal largely against the factual findings of the court. The approach to be adopted by a court of appeal when it deals with the factual findings of a trial court trite. A court of appeal will not disturb the factual finding of a trial court unless the latter had committed a misdirection. Where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is correct. The appeal court will only reverse it where it is convinced that it is wrong. In such a case, if the appeal court is merely left in doubt as to the correctness of the conclusion, then it will uphold it. See for example, JMYK Investments CC v 600 SA Holdings (Pty) Ltd 2003 (3) SA 470 (W) at 472.
[5] In the present case, I am not persuaded that there has been any misdirection as far as the factual findings are concerned. For all the above considerations, I am not persuaded that any other court would come to a different conclusion. Even if one adopts Mr Vorster' s proposition that the ultimate test remains one of reasonable prospects of success, I am not persuaded there are such prospects.
[6] In the result the application falls to fail, and the following order is therefore made:
1. The application for leave to appeal is dismissed with costs.
_______
T.M. Makgoka
Judge of the High Court
Heard: 5 February 2016
Judgment delivered: 12 February 2016 Appearances:
For the Applicant: Instructed by:
Adv. J. Vorster SC
Savage Jooste & Adams Inc., Pretoria
For the Second Respondents in
the consolidated actions: Adv. J. Viljoen
Instructed by: Malan & Mchale Attorneys, Pretoria
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