P.P Milazi Incorporated v Road Accident Fund and Another (33229/20) [2020] ZAGPPHC 765 (26 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 33229/20

REPORTABLE:NO

OF INTEREST TO OTHER JUDGES: NO

REVISED

DATE: 26 OCTOBER 2020

In the matter between:

P.P. MILAZI INCORPORATED

APPLICANT

and

ROAD ACCIDENT FUND

FIRST RESPONDENT

SHERIFF OF THE HIGH COURT

JOHANNESBURG CENTRAL

SECOND RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

COLLIS J:

INTRODUCTION

[1] In the present application, the applicant is seeking leave to appeal the judgment of this court handed down on 6 August 2020.[1]

[2] By way of background: On 27 July 2020, the applicant brought an urgent application against the respondents. The application was opposed by only the first respondent and upon the hearing of the application, the court had directed the parties to address the court as a preliminary point on the urgency of the application.

[3] Pursuant to such address, this court handed down an ex tempore judgment resulting in the urgent application being struck from the roll, with the applicant ordered to pay the costs of the application on an attorney and client scale, including costs consequent upon the employment of two counsel.

[4] Thereafter the applicant requested reasons from the court in a request filed with the registrar of this court on 14 August 2020. Prior to the reasons being delivered within the time period permitted by Rule 49(1)(c), the applicant in serious haste proceeded to serve a Notice of Application for Leave to Appeal dated 21 August 2020.

[5] In anticipation of the hearing of the application for leave to appeal, the court requested the parties to file written Heads of Argument in order to facilitate the virtual hearing of the matter.

APPLICANTS’ SUBMISSIONS

[6] At the hearing counsel for the applicant contended that leave to appeal should be granted in that the appeal would have a reasonable prospect of success.

[7] In essence the grounds advanced by the applicant in seeking leave to appeal the costs order of this court, is that the scale of costs awarded against the applicant is unreasonable in that the first respondent had paid a substantial portion of the outstanding claims on the eve of the hearing of the application. In his submissions counsel had conceded that the only basis therefore as to why the applicant persisted with the application in the urgent court was to obtain an undertaking from the first respondent as to the remainder of the outstanding claims and by when such balance of the claims would be paid.

[8] In addition to the above, counsel had argued that the scale of costs awarded against the applicant is unwarranted as the applicant had approached this court for relief which is genuine.

RESPONDENT'S SUBMISSIONS

[9] On behalf of the respondent, counsel had argued that the notice for leave to appeal is not a model of clarity, in that it merely alleges that there are some reasonable prospects of success on appeal and that the matter is not moot.

[10] In essence it appears that the applicant contends that the court erred in making an order for costs on an attorney and client scale as it had only come to court to obtain some assistance.

[11] In respect of the costs order granted against the applicant, counsel had argued, seldom are costs orders appealable and that in order for the applicant to succeed it must demonstrate that exceptional circumstances exist i.e. that the court failed to exercise its discretion judiciously or granted the order influence by wrong principles or a misdirection of the facts.[2]

LEGAL PRINCIPLES

[12] Section 17 of the Superior Court's Act provides as follows:[3]

(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 to appeal does not fall within the ambit of section 16(2)(a);

(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.

[13] Now it appears the main thrust of the arguments advanced by the applicant is that this court should not have awarded costs against it on an attorney and client scale. No challenge is mounted by it that costs was awarded against it, or that costs was awarded consequent upon the employment of two counsel against it. As such, the applicant merely challenges the scale of costs.

[14] As to the test to be applied by a court in considering an application for leave to appeal, Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the following:

'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.'

[15] ‘In order to succeed, therefore, the appellant must convince this Court on proper grounds that the appeal would have a reasonable prospect of success or that there is some other compelling reason why the appeal should be heard. He must therefore demonstrate that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other word, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’[4]

[16] Now, a court when considering an order for costs, exercises a discretion.[5] As mentioned, this discretion so exercised by a court, must be exercised judiciously. Being mindful of the test as set out in paragraph 15 above, the applicant has failed to place facts before this court which demonstrates that this court had failed to exercise

its discretion judiciously and by extension had erred in exercising its discretion. No cogent argument in this regard, had been placed before this court. The applicant has further also failed to persuade this court that the costs order granted by this court was influenced by wrong principles or a misdirection of the facts.

[17] Therefore, having considered the arguments presented before this court, including the cases made reference to, I am not persuaded that the appeal would have a reasonable prospect of success.

ORDER

[18] Consequently I make the following order:

18.1 The application for leave to appeal is dismissed with costs.

C.J. COLLIS

JUDGE OF THE HIGH COURT

GAUTENG DIVISION PRETORIA

APPEARANCES:

FOR APPLICANT:

ADV.LR MATSHIDZA

INSTRUCTED BY:

P.P. MALAZI INCORPORATED

FOR FIRST RESPONDENT: ADV. R. TSHETLO

INSTRUCTED BY:

MALATJI & CO. ATTORNEYS

DATE OF HEARING:

9 OCTOBER 2020

DATE OF JUDGMENT: 26 OCTOBER 2020

Judgment electronically transmitted.

[1] Ex Tempore Judgment Collis J delivered 6 August 2020

[2] National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others [1999] ZACC 17; 2000 (2) SA 1 (CC) at para 11.

[2] National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others [1999]

ZACC 17; 2000 (2) SA 1 (CC) at para 11.

[3] Act 10 of 2013

[4] S v Smith 2012 (1) SACR 567 (SCA) at para 7

[5] Ferreira v Levin NO & Others; Vryenhoek & Others v Powell NO & Others 1996 (1) SA 984 (CC).