Savannah Country Estate Home Owners Association v Zero Plus Trading 194 (Pty) Limited and Others (43842/13) [2020] ZAGPPHC 314 (3 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 43842/13

In the matter between:

SAVANNAH COUNTRY ESTATE

HOME OWNERS ASSOCIATION

APPLICANT

and

ZERO PLUS TRADING 194 (PTY) LIMITED

FIRST RESPONDENT

MARIO BRONN PRETORIUS

SECOND RESPONDENT

UNIVERSITY OF PRETORIA

THIRD RESPONDENT

AND ELEVEN OTHERS

FOURTH TO FOURTEEN RESPONDENTS (NOT PARTIES TO APPLICATION FOR LEAVE TO APPEAL)

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

COLLIS J:

INTRODUCTION

[1] This is an application for leave to appeal the judgment of this court handed down on 10 December 2019.[1]

[2] The application is premised on the grounds as listed in the Notice of Application for Leave to Appeal dated 23 December 2019.

LEGAL PRINCIPLES

[3] Section 17 of the Superior Court's Act provides as follows:[2]

(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.

[4] 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.'

[5] '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.'[3]

[6] The applicants and the respondents on request by this court filed written Heads of Argument in order to facilitate the virtual hearing of the matter.

[7] I do not propose to deal with each and every ground individually advanced by the applicants in this application for leave to appeal, but will do so in a summarised fashion.

APPLICANTS' SUBMISSIONS

[8] Counsel for the applicant contended that leave to appeal should be granted in that the appeal would have a reasonable prospect of success. In submissions made to the court, counsel argued that this court in the event of upholding the special pleas should not have dismissed the applicants claim as this was not dispositive of the matter. It was contended that the court erred in that it ought to have invoked the provisions of Rule 33(5) and gave directions regarding the adjudication of the remaining issues, in the

proceedings which may be necessary and dispositive of the matter. Furthermore, that as the respondents carried the onus in respect of the merits on the special pleas, there rested no such obligation on the applicants to rebut what has been pleaded by way of presenting oral evidence. It is on this basis that it was contended that the leave to appeal ought to be granted.

RESPONDENTS ' SUBMISSIONS

[9] On behalf of the respondents, counsel on either side had argued that no reasonable prospect exists that another court would find for the applicants . At the hearing and by agreement between the parties it was agreed between them, that the court should adjudicate the special pleas without the need to present oral evidence, this despite the applicant having indicated at a pre-trial hearing held on 8 April 2019, that it would reserve its right in this regard and an election made by it at the hearing, not to ultimately exercise this right. In addition to this, the common cause facts between the parties which this court relied upon to define the legal processes that took place and the legal effect thereof when a Sectional Title Scheme ceases to exist, are not criticised by the applicant as a ground of appeal. Furthermore, that Erf 445 Savannah Country Estate, Extension 5 which the applicant now seeks to have returned, is no longer in existence and as such no reasonable prospect exists that another court would find for the

applicant.

[10] This court in its judgment and more specifically in paragraph 16 thereof, specifically set out the consequences of a party electing not to present oral evidence where indeed the need arose to do so. It is so that where a litigant raises a special plea that such party carries the onus to prove such plea and that the opposing party, carries the duty to rebut such plea and where necessary to present evidence in such rebuttal. This election is not one to be made by the court on behalf of a litigant, but by the litigant himself and in the present instance the applicant elected not to exercise such right. To my mind this forms the crux of the applicants ' grounds and in the absence of it presenting viva voce evidence to prove no intention to conclude a valid sale agreement in respect of Erf 445, this court was not entitled to declare such sale null and void. This failure to present viva voce evidence was fatal to the applicants' case.

[11] In the result I am therefore of the opinion that the appeal would not have a reasonable prospect of success.

ORDER

[12] Consequently the following order is made:

12.1 The application for leave to appeal is dismissed, with costs, such costs to include the costs consequent upon the employment of senior counsel in respect of the first, second and third respondents.

C. J. COLLIS

JUDGE OF THE HIGH COURT

GAUTENG DIVISION PRETORIA

APPEARANCES:

FOR THE APPLICANT:

ADV. D. KELA

INSTRUCTED BY:

MATOJANE MALUNGANA INC.

FOR FIRST AND

SECOND RESPONDENTS :

ADV. L. PUTTER SC

INSTRUCTED BY:

KLAGSBURN EDELSTEIN

BOSMAN DEVRIES INC.

FOR THE THIRD RESPONDENT: ADV. J.P. VORSTER SC

INSTRUCTED BY:

TIM DU TOIT & CO INC.

DATE OF HEARING:

25 MAY 2020

DATE OF JUDGMENT:

03 JULY 2020

Judgment electronically transmitted.

[1] Judgment Collis J delivered 10 December 2019

[2] Act 10 of 2013

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