Toolmaking Association of South Africa v Scheepers and Others (16493/17) [2020] ZAGPPHC 458 (12 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 16493/17

DATE 12 August 2020

In the matter between:

THE TOOLMAKING ASSOCIATION OF SA

APPLICANT

and

MICKEY SCHEEPERS

FIRST RESPONDENT

HENK SNYMAN

SECOND RESPONDENT

GAUTENG TOOLING INITIATIVE NPC THIRD RESPONDENT

VUSI MKHIZE

FOURTH RESPONDENT

DANIEL BERGER

FIFTH RESPONDENT

THABO DISEKO

SIXTH RESPONDENT

ALBERT KRUGER

SEVENTH RESPONDENT

TUMI LIESE

EIGHTH RESPONDENT

CHANTELLE PHILLIPS

NINTH RESPONDENT

ROBERT BOND

TENTH RESPONDENT

JOHAN DE JAGER

ELEVENTH RESPONDENT

ERIC MABASA

TWELFTH RESPONDENT

KOOS SNYMAN

THIRTEENTH RESPONDENT

APPLICATION FOR LEAVE TO APPEAL-REASONS

TLHAPI J

[1] This is an application for leave to appeal premised on section 17(1) of the Superior Courts Act 10 of 2013, ("the Act") which section is set out in its entirety below:

"Section 17(1)

(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 reasonable prospect of success; or

(ii) there is some other compelling reasons why the appeal should be heard, including conflicting judgments on the matter under

consideration;

(b)

the decision sought on appeal does not fall withing the ambit of section 16(2); and

(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."

[2] Previously the test applied to similar applications was whether there were reasonable prospects that another court may come to a different conclusion, Commissioner of Inland Revenue v Tuck 1989 (4) SA 888(T). The threshold of reasonable prospects has now been raised by the use and meaning attached to the words 'only' in 17(1) and 'would'

in section 17(1)(a)(i). Therefore on the entire judgement there should be some certainty that another court would come to a different

conclusion from the judgement the applicant seeks to appeal against. In Mont Chevaux Trus v Tina Goosen and 18 Others 2014 JDR 2325(LCC) at para[6] :

"It is clear that the threshold for granting leave to appeal 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"

[3] In S v Smith 2012 (1) SACR 567(SCA) at para 7, a more stringent test is called for in that an applicant must convince a court, on proper grounds that there are prospects of success which are not remote, a mere possibility is not sufficient. Therefore, where the applicant has satisfied either of the two identified requirements in the Act, leave to appeal should be granted, Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others 2016 (3)SA 317 (SCA). This standard was confirmed in Notshokovu v S (157/15) [2016] ZASCA (7 September 2016) at paragraph [2] where it was stated:

"............. An appellant on the other hand faces a higher and stringent threshold in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959 "

[4] I have considered the grounds upon which the applicant relies together with the submissions and arguments of Mr Norwitz for the applicant, of both counsel, Mr Klepper for the first respondent and Mr Brand for the second respondent.

[5] The version of the 4th respondent constituted a summary of the evidence as a whole. No finding was expressed or comment made on the 4th respondent's version to favour the first or second respondent or for or against the 4th respondent from paragraph 22 of the judgement onwards.

[6] In as far as the finding regarding the effect of the withdrawal of prayers 1 - 5, against the first and second respondents before the matter was heard by the court, I do not find that there would be prospects in the appeal. While applicant contended in the founding papers that it had fulfilled the requirements for interim relief, it was at the instance of the applicant that the interim interdictory relief initially sought was withdrawn before the matter was heard. The applicant was made aware that the said respondents sought to be reimbursed their costs occasioned by such withdrawal and applicant through its attorney declined to tender such costs. There was not misdirection in awarding costs as ordered by the court. I further do not find that compelling reasons exist for leave to appeal to be granted on this ground for reasons given in paragraph [24] of the judgement.

[7] The issue of whether the facts reflected that a fiduciary duty arose in respect of the first and second respondent for a statement and debatement are dealt with in paragraphs [34] to [38] of the judgement. A case needed to be made out with the applicant laying a basis for the relationship in the founding affidavit and whether there was a transgression in the relationship on the part of the respondents. I do not find that the applicant has made out a case that there would be prospects in the appeal. I further do not find that there are compelling reasons that exist for leave to be granted on these grounds.

[8] In the result the following order is given:

(1) The application for leave to appeal is dismissed with costs.

TLHAPI V V

(JUDGE OF THE HIGH COURT)

MATTER HEARD On 25 JUNE 2020

JUDGMENT RESERVED ON 25 JUNE 2020

ATTORNEYS FOR THE APPLICANT NOWITZ ATTORNEYS

ATTORNERS FOR1st RESPONDENTS TIAAN JOUBERT ATT.

ATTORNEYS FOR THE 2nd RESPONDENTS

PIETER VAN R. COETZEE