Nkwanyana and Another v Open Mic Productions (Pty) Ltd and Another (Leave to Appeal) (098393/2023) [2025] ZAGPPHC 734 (24 July 2025)
The court found that the application for leave to appeal did not meet the threshold of reasonable prospects of success as required by section 17(1)(a)(i) of the Superior Courts Act. Both parties agreed that the original costs order was ambiguous because only one counsel appeared for the respondent at the hearing,...
Source-derived case information.
- Citation
- [2025] ZAGPPHC 734
- Parties
- Applicant: Nomcebo Nothule Nkwanyana; Applicant: Emazulwini Production and Projects (Pty) Ltd; Respondent: Open Mic Productions (Pty) Ltd; Respondent: Africori SA (Pty) Ltd
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 098393/2023
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment and Costs Order
- Outcome
- Application for leave to appeal refused; costs order varied; applicants to pay costs of the application jointly and severally.
- Judges
- G N Moshoana
- Legal Topics
- Leave to Appeal, Costs Orders, Variation of Orders, Superior Courts Act, Uniform Rules of Court
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nomcebo Nothule Nkwanyana
Applicant
Emazulwini Production and Projects (Pty) Ltd
Applicant
Open Mic Productions (Pty) Ltd
Respondent
Africori SA (Pty) Ltd
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Costs Order
Legal Issues
- 1 Whether the application for leave to appeal meets the requirements of section 17(1)(a)(i) of the Superior Courts Act.
- 2 Whether the original costs order should be varied to remove reference to costs for two counsel.
- 3 Whether the applicants should pay the costs of the leave to appeal application.
Ratio Decidendi
The court found that the application for leave to appeal did not meet the threshold of reasonable prospects of success as required by section 17(1)(a)(i) of the Superior Courts Act. Both parties agreed that the original costs order was ambiguous because only one counsel appeared for the respondent at the hearing, yet the order referred to costs for two counsel. The court exercised its power under Rule 42(1)(b) of the Uniform Rules to vary the order and remove the reference to costs for two counsel. The court further held that the present application did not justify the employment of two counsel and awarded costs for one counsel only, to be paid jointly and severally by the applicants.
Court Disposition
Application for leave to appeal refused; costs order varied; applicants to pay costs of the application jointly and severally.
Orders
- The application for leave to appeal is refused.
- Paragraph 2 of the order made on 9 May 2025 is varied by deletion of the phrase 'which costs include the employment of two counsel'.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 098393/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 24 July 2025
SIGNATURE
In the matter between:
NOMCEBO NOTHULE NKWANYANA
First Applicant
EMAZULWINI PRODUCTION AND PROJECTS (PTY) LTD Second Applicant
and
OPEN MIC PRODUCTIONS (PTY) LTD
First Respondent
AFRICORI SA (PTY) LTD
Second Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on Caselines. The date and for hand-down is deemed to be 24 July 2025.
Summary: Application for leave to appeal. The requirements of section 17 of the Superior Courts Act not met. Court empowered by rule 42(1)(b) to vary its order mero motu. Held: (1) The application for leave to appeal is refused. Held: (2) Paragraph 2 of the order is varied by deleting the phrase “which costs include the costs of employing two counsel”. Held: (3) The applicant to pay the costs of this application on a scale of party and party taxable or to be settled on scale B, the one party paying absolving the other.
JUDGMENT LEAVE TO APPEAL
MOSHOANA, J
Introduction
[1] This is an application launched in terms of section 17(1)(a)(i) of the Superior Courts Act (“the Act”)[1]. It must be declared upfront that the applicants, upon enquiry, informed this Court that the provisions of section 17(1)(a)(ii) do not arise as none of the grounds pursued by the applicants provides some compelling reasons for the appeal to be heard. Accordingly, the enquiry will be limited to the question whether the appeal, if leave is granted, would have a reasonable prospect of success.
Analysis
[2] Having perused the application for leave to appeal, the written submissions of the parties and considered all the grounds punted for to impugn the judgement and order, this Court is not of an opinion that the appeal for which leave is sought would have reasonable prospects of success. Having formed that opinion, as required by section 17(1)(a)(i) of the Act, leave to appeal may not be given. The application is bound to fail. During argument of this application, both parties were ad idem that at the hearing of the dismissed application, the respondent was not represented by two counsel. Such implied that paragraph 2 of the order constituted an ambiguity which requires a removal to achieve clarity. Rule 42(1)(b) of the Uniform Rules empowers this Court to mero motu vary an order. Regard being had to the provisions of section 16(2)(a) of the Act it would be impractical for this Court to ask the appeal Court to correct the ambiguity on a costs issue. Accordingly, the phrase “which costs include the costs of employing two counsel” is excised from paragraph 2 of the order.
[3] Turning to the costs of the present application, two counsel appeared on behalf of the respondent. A submission was made that the opposing respondent should be awarded the costs of employing two counsel. This Court takes a view that the present application did not deserve employment of two counsel. Therefore, the opposing respondent is entitled to the costs of employing one counsel.
[4] Because of all the above reasons, I make the following order:
Order
1. The application for leave to appeal is refused.
2. Paragraph 2 of the order made on 9 May 2025 is varied by deletion of the phrase “which costs include the employment of two counsel”.
3. The applicants are to jointly but severally pay the costs of this application, the one paying absolving the other, on a scale as between party and party to be settled or taxed at scale B.
G N MOSHOANA
JUDGE OF THE HIGH COURT
APPEARANCES:
For the applicants: Ms Z Cornelissen. Instructed by: Rosengarten & Feinberg, JHB. For the Respondent: Mr M R Maphutha with Mr A Seshoka Instructed by: M Ramalivha Attorneys, Sandton Date of the hearing: 23 July 2025 Date of judgment: 24 July 2025
[1] Act 10 of 2013.