NM and Others v Smith and Others (24948/02) [2005] ZAGPHC 133 (22 August 2005)
The court found that, despite the numerous grounds and sub-grounds advanced by the applicants, there was no reasonable prospect that another court would reach a different decision on the substantial issues. The application for leave to appeal was therefore dismissed with costs. The omission of interest on the...
Source-derived case information.
- Citation
- [2005] ZAGPHC 133
- Parties
- Applicant: NM and Others; Respondent: Smith and Others
- Court
- High Courts - Gauteng
- Jurisdiction
- South Africa
- Case Number
- 24948/02
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment
- Outcome
- Application for leave to appeal dismissed with costs; order amended to include interest on damages award.
- Judges
- Schwartzman
- Legal Topics
- Leave to Appeal, Reasonable Prospect of Success, Interest on Damages, Rule 42 Correction
Source-derived case record
Summary, issues, holding and outcome
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Parties
NM and Others
Applicant
Smith and Others
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Legal Issues
- 1 Whether there is a reasonable prospect that another court would reach a different decision on the merits of the case.
- 2 Whether the failure to award interest on the damages can be corrected mero motu under rule 42(1).
Ratio Decidendi
The court found that, despite the numerous grounds and sub-grounds advanced by the applicants, there was no reasonable prospect that another court would reach a different decision on the substantial issues. The application for leave to appeal was therefore dismissed with costs. The omission of interest on the damages award was acknowledged as a correctable error, and the order was amended to include interest a tempore mora from the date of service of summons to the date of payment.
Court Disposition
Application for leave to appeal dismissed with costs; order amended to include interest on damages award.
Orders
- The application for leave to appeal is dismissed with costs.
- Paragraph 2 of the previous order is amended to add: The defendant is to pay interest a tempore mora on the award from the date of service of summons to the date of payment.
Full Case Text
Judgment text and source record
3 paragraphs
SCHWARTZMAN, J : This is a 36 page application for leave to appeal against the judgments I handed down in this matter. The application lists 46 separate grounds of appeal and some 137 sub-grounds, some of which I think verge on an abuse of the process of seeking leave to appeal. I was told that all of these grounds are being persisted with and that none were to be overlooked in considering whether or not to grant leave to appeal. Be this as it may I have also listened to counsels argument in support of the application as well as argument opposing the application. I have been told by Applicants Senior counsel that Constitutional issues and legal issues arise in this matter and that they call for a decision by the Supreme Court of Appeal. What I am required to consider is whether there is a reasonable prospect of another court coming to a different decision than the one that I arrived at. I remain unconvinced on the more substantial grounds of appeal argued before me, that there is such a prospect. In the result the application for leave to appeal is dismissed with costs. There is also an application by the 3rd respondent for leave to appeal. 3rd Respondent’s counsel submitted that if I refuted the application for leave to appeal it was no longer persisting with its application for leave to appeal. In the result no order is made on the 3rd respondent/defendant’s application for leave to appeal. In the course of argument my attention was drawn to the fact and this appears from the application for leave to appeal, that I erred in failing to award the plaintiffs interest on the damages award that I made in this matter. Counsel agreed that this is the type of error that a court can in terms of rule 42(1) mero motu correct. I intend doing so by amending paragraph 2 of my order by adding the following: The defendant is to pay interest a tempore mora on the award from the date of service of summons to the date of payment of the amount ordered. ON BEHALF OF APPLICANT:
ADV BERGER (SC) ON BEHALF OF RESPONDENT:
ADV J W CAMPBELL