Nannen and Others v Momentum and Others (6796/05, 2275/05) [2017] ZAGPPHC 433 (14 June 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 6769/05

2275/05

Date: 14/6/2017

Reportable: No

Of interest to other Judges: No

In the matter between:

A NANNEN 1st PLAINTIFF

Y NANNEN 2nd PLAINTIFF

A Y NANNEN N.O 3rd PLAINTIFF

Y NANNEN N.O 4th PLAINTIFF

and

MOMENTUM 1st DEFENDANT

MOMENTUM GROUP LIMITED 2nd DEFENDANT

FIRSTRAND LIMITED 3rd DEFENDANT

Coram: HUGHES J

[1] This is an application made by the plaintiffs for leave to appeal against my judgment of 18 April 2017. The application is duly opposed by the defendants.

[2] The plaintiffs filed extensive grounds for the leave to appeal application.

[3] What resonates from the grounds for leave to appeal both legal and factual is to a large extent 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 the judgment, in as much as that which was relevant was dealt with in the judgment.

[4] The section which deals with circumstances in which leave to appeal may be granted is section 17 (1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). What is specifically relevant in this case, is section 17 (1) (a). For easy reference I set out section 17 (1) in its entirety below:

"(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 (2) (a); 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]

[5] 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 B90B. 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 follows:

"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 judgment is sought to be appealed against." [My emphasis]

[6] Both counsel conceded that the issue was a narrow one, that being the failure of the deceased to disclose his consultations with Dr Luke and the blood tests which were conducted. The deceased failed to disclose this information to the insurer when he completed his insurance application form.

[7] The plaintiff’s argue that the materiality of the non-disclosure ought to be determined and interpreted, to establish if indeed the non-disclosure was in fact material. They further argue that the non-disclosure would only be material if it had led to the deceased's demise. In this instances, the plaintiffs contend that it did not, and as such could not have been regarded a material non-disclosure.

[8] Adv. Keet, for the plaintiffs, argues that another court could interpret whether the non-disclosure is material or not, differently from this court. In addition, the case is of importance to the plaintiff s as it involves a huge amount of money.

[9] The defendants argue that in this leave to appeal the plaintiffs have failed to challenge the factual findings and legal conclusions found in paragraphs 77 to 80. That being the case those findings and conclusions thus stand. Therefore the defendants have succeeded in discharging the onus placed before them. Adv. Mundell SC, for the defendants, further argues that, if that is so then the plaintiffs have no grounds to launch this application for leave to appeal. It is further contend, that the matter needs to be brought to finality as the litigation, in this matter, spans from as far back as 2005.

[10] I t was submitted by Adv. Keet that another court would interpret materiality differently as opposed to the interpretation of this court in the judgment. The plaintiffs attribute this to the fact that the non-disclosure was not causally linked to the deceased's demise and there was no evidence to

the contrary.

[11] I am fortified in my view that the test for materiality was correctly applied in my judgment and the findings on the facts and the conclusions on the law were correct. I do appreciate that this matter is of importance to the parties, however, that in my view does not equate to a compelling reason to grant leave to appeal.

[12] Consequently the following order is made:

[12.11 The application for leave to appeal is dismissed with costs.

______________________

W. Hughes

Judge of the High Court Gauteng, Pretoria