Nel N.O. and Others v Marx N.O. and Another (4679/2016) [2017] ZAFSHC 180 (2 November 2017)
- Citation
- [2017] ZAFSHC 180
- Status
- Ruling
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- C Reinders
- Case number
- 4679/2016
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- C Reinders
- Case number
- 4679/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
After considering the grounds for leave to appeal, the judgment, and oral submissions, the court found no measure of certainty that another court would reach a different conclusion. The applicants failed to meet the raised threshold under section 17(1) of the Superior Courts Act, which requires more than a mere possibility of success. The application for leave to appeal was therefore dismissed with costs.
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
Jan Joachim Nel N.O.
Applicant Counsel: Adv. S. GrablerJoyce Nel N.O.
Applicant Counsel: Adv. S. GrablerHannes Lotter N.O.
Applicant Counsel: Adv. S. GrablerCornelius Johannes Herculas van Tonder t/a NJ Konsultante
Applicant Counsel: Adv. S. GrablerJacobus Marx N.O.
Respondent Counsel: Adv. A.J.R. van Rhyn SCJohanet Helena Marx N.O.
Respondent Counsel: Adv. A.J.R. van Rhyn SC03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
04
Questions and positions
Legal issues
- 01
Whether the applicants have demonstrated that the appeal would have a reasonable prospect of success as required by section 17(1) of the Superior Courts Act.
- 02
Whether the court erred in its reasoning or failed to exercise judicial discretion correctly.
Party arguments
- Applicant
- The applicants contend that the court's reasoning was erroneous, that relevant factors were not considered, and that judicial discretion was not properly exercised. They assert that these errors justify the granting of leave to appeal.
- Respondent
- The respondents argue that the applicants have not met the stringent requirements of section 17(1) of the Superior Courts Act, as there is no reasonable prospect that another court would reach a different conclusion. They submit that the application for leave to appeal should be dismissed.
05
Court’s reasoning
Legal principles
- 01
Superior Courts Act 10 of 2013, section 17(1)
Leave to appeal may only be granted if the judge is of the opinion that the appeal would have a reasonable prospect of success, indicating a measure of certainty that another court will differ.
- 02
Matoto v Free State Gambling and Liquor Authority and Others (4629/2015) [2017] ZAFSHC 80
The threshold for granting leave to appeal has been raised; the test now requires certainty that another court would differ, not merely that it might.
- 03
Acting National Director of Public Prosecutions and Others v Democratic Alliance (19577/209) [2016] ZAGPPHC 489
The use of the word 'only' in section 17(1) further indicates a more stringent test for leave to appeal.
06
Ratio, limits and disposition
Ratio decidendi
After considering the grounds for leave to appeal, the judgment, and oral submissions, the court found no measure of certainty that another court would reach a different conclusion. The applicants failed to meet the raised threshold under section 17(1) of the Superior Courts Act, which requires more than a mere possibility of success. The application for leave to appeal was therefore dismissed with costs.
Obiter and limits
- The bar for granting leave to appeal has been raised by the legislature, requiring a more stringent test than previously applied.
- The court must be satisfied with a measure of certainty that another court would differ, not simply that it might.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
Source and reliance status
Free State High Court, Bloemfontein
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.
Free State High Court, Bloemfontein
Ruling
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 4679/2016
In the matter between:
JAN JOACHIM NEL N.O First
Applicant
JOYCE NEL N.O
Second Applicant
HANNES
LOTTER N.O Third
Applicant
CORNELIUS
JOHANNES HERCULAS VAN
TONDER t/a NJ KONSULTANTE Fourth Applicant
and
JACOBUS MARX N.O. First
Respondent
JOHANET
HELENA MARX N.O. Second
Respondent
JUDGMENT BY: C REINDERS, J
HEARD ON: 27 OCTOBER 2017
DELIVERED ON: 2 NOVEMBER 2017
[1] This is an application for leave to appeal against the judgment and order granted by myself on 7 September 2017.
[2] In the Notice of Application for Leave to appeal filed on 29 September 2017 the Applicants set out the grounds of appeal. I do not intend repeating same. The upshot of these grounds are to a large extent asserting that this courts reasoning was erroneous, that I failed to take into consideration factors which I ought to have and failed to apply my judicial discretion correctly.
[3] This application must be considered in accordance with the provisions of s17 of the Superior Courts Act, 10 of 2013. In terms of s17(1) leave to appeal may only be given where the judge or judges concerned of the opinion that-
(a)(i) the appeal would have a reasonable prospect of success (own emphasis added)
(ii)...
(b)...
(c)... .
In the unreported case of Matoto v Free State Gambling and Liquor Authority and Others (4629/2015) (2017) ZAFSHC 80 (8 June 2017) Daffue J (with whom Rampai J concurred) articulated at para (5) as follows:
"There can be no doubt that the bar for granting leave to appeal has been raised. Previously, the test was whether there was a reasonable prospect that another court might come to a different conclusion. Now, the use of the word "would" indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. See Acting National Director of Public Prosecutions and Others v Democratic Alliance (19577/209) [2016] ZAGPPHC 489 (24 June 2016). The use by the legislature of the word "only" emphasized supra, is a further indication of a more stringent test."
[4] Having perused the papers before me including the grounds for the application for leave to appeal and my judgment and listening to oral submissions by counsel, I do not have a measure of certainty that another court would come to a different finding.
[5] Consequently the following order will issue:
The application for leave to appeal is dismissed with costs.
______
C. REINDERS, J
On behalf of the Applicants: Adv. S. Grabler
Instructed by:
Peyper Attorneys
BLOEMFONTEIN
On behalf of the Respondents: Adv. A.J.R. van Rhyn SC
Kramer Weihmann & Joubert Inc
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