Hamilton v Member of the Executive Council Responsible for Economic Development, Gauteng and Another (Leave to Appeal) (2023/049211) [2024] ZAGPPHC 922 (19 September 2024)
- Citation
- [2024] ZAGPPHC 922
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Holland-Muter
- Case number
- 2023/049211
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Holland-Muter
- Case number
- 2023/049211
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the removal of the application for leave to appeal from the roll was due to a procedural error in notification and that the order of removal should be rescinded. The mandate of the attorneys acting for the appellant was deemed valid after hearing both parties. Upon considering the submissions and applying section 17(1)(a) of the Superior Courts Act, the court concluded that there was no reasonable prospect of success or other compelling reason to grant leave to appeal. The application for leave to appeal was therefore refused, and costs were awarded to the respondent, including those for senior counsel.
Court disposition
Application for rescission granted; application for leave to appeal refused with costs.
Orders
- The application for rescission of the judgment granted on 16 August 2024 is granted and that order is set aside.
- The application for leave to appeal previously enrolled is re-enrolled and to be heard on this day.
- The mandate of the attorneys acting on behalf of the appellant is deemed to be valid.
- The application for leave to appeal is refused with costs, costs to be for senior counsel.
02
Material facts
Parties
Simphiwe Hamilton
Applicant Counsel: Adv R Mogagabe SCMember of Executive Council Responsible for Economic Development, Gauteng
Respondent Counsel: Adv B Joseph SCGauteng Growth & Development Agency
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Rescission of Removal From the Roll
04
Questions and positions
Legal issues
- 01
Whether the removal of the application for leave to appeal from the roll should be rescinded.
- 02
Whether the mandate of the attorneys acting for the appellant is valid.
- 03
Whether leave to appeal should be granted under section 17(1)(a) of the Superior Courts Act.
- 04
Whether costs should be awarded and on what basis.
Party arguments
- Applicant
- The applicant argued that the removal of the application for leave to appeal from the roll was due to a procedural error, specifically a failure in notification caused by an incorrect email address. The applicant submitted an affidavit explaining the circumstances and requested rescission of the removal order. The applicant further contended that the mandate of the attorneys was proper and that the application for leave to appeal should be considered on its merits.
- Respondent
- The respondent did not oppose the rescission application and confirmed that there was no objection to the reinstatement of the application for leave to appeal. On the merits, the respondent argued that the requirements of section 17(1)(a) of the Superior Courts Act were not met, as there was no reasonable prospect of success or compelling reason for the appeal to be heard. The respondent sought costs, including those for senior counsel.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a) of the Superior Courts Act, 10 of 2013
Leave to appeal will only be granted if the judge is of the opinion that the appeal would have a reasonable prospect of success or there is another compelling reason for it to be heard.
- 02
Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC)
The test for leave to appeal has been raised from whether another court might come to a different conclusion to whether another court would come to a different conclusion, requiring a greater measure of certainty.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the removal of the application for leave to appeal from the roll was due to a procedural error in notification and that the order of removal should be rescinded. The mandate of the attorneys acting for the appellant was deemed valid after hearing both parties. Upon considering the submissions and applying section 17(1)(a) of the Superior Courts Act, the court concluded that there was no reasonable prospect of success or other compelling reason to grant leave to appeal. The application for leave to appeal was therefore refused, and costs were awarded to the respondent, including those for senior counsel.
Obiter and limits
- The court noted that the bar for granting leave to appeal has been raised, requiring certainty that another court would reach a different conclusion, not merely that it might.
- The process for electronic delivery of judgments was confirmed as valid, with the date of uploading deemed the date of judgment.
Court disposition
Application for rescission granted; application for leave to appeal refused with costs.
- The application for rescission of the judgment granted on 16 August 2024 is granted and that order is set aside.
- The application for leave to appeal previously enrolled is re-enrolled and to be heard on this day.
- The mandate of the attorneys acting on behalf of the appellant is deemed to be valid.
- The application for leave to appeal is refused with costs, costs to be for senior counsel.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2023/049211
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
DATE: 19/9/2024
SIGNATURE
In the matter between:
SIMPHIWE
HAMILTON
Applicant/Respondent in Leave to appeal
And
MEMBER OF EXECUTIVE COUNCIL RESPONSIBLE FOR ECONOMIC DEVELOPMENT,
GAUTENG
1st Respondent/Appellant in leave to Appeal
GAUTENG GROWTH &DEVELOPMENT AGENCY
2nd Respondent
JUDGMENT : APPLICATION FOR LEAVE TO APEAL
(Judgment was heard in open court but handed down electronically to the parties and their legal representatives by e-mail and uploading it onto the electronic file of the matter on CaseLines. The date of uploading is deemed to be the date of the judgment)
BEFORE: HOLLAND-MUTER J
[1] The appellant filed an application for leave to appeal and such application was set down for hearing on 16 August 2024.
[2] Due to a mistake on the e-mail address to the appellant, the notification for the said date never reached the offices of the appellant’s attorney of record.
[3] The application for leave to appeal was removed from the roll on 16 August 2024 for lack of any appearance on behalf of the appellant. The matter was merely removed without any deliberation of the merits of the application.
[4] When the appellant became aware of the above, the attorney of record contacted the court’s registrar and they were informed that they should file an application for rescission of the removal from the roll together with an explanation of the situation.
[5] The appellant filed the application for rescission of the order of 16 August 2024 together with an affidavit to explain the above. The matter was set down for hearing on 18 September 2024.
[6] Having heard counsel on behalf of the appellant, with no objection from the other party’s counsel, the order granted on 16 August 2024 was rescinded.
[7] There was a further interlocutory issue regarding the mandate of the current attorneys of record on behalf of the appellant but after hearing both counsel, the court was satisfied that the necessary mandate was proper. The court requested the parties to continue with the application for leave to appeal.
[8] In order to persuade any court in terms of section 17(1)(a) of the Superior Court Act, 10 of 2013, to grant leave to appeal, such leave will only be granted when the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or that there is other compelling reason(s) why the appeal should be heard.
[9] Having heard the submissions made before the court, I am of the view that there is no prospect of success or other compelling reasons why leave to appeal should be granted in this matter. See Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC).
[10] Previously, before section 17 was amended, the test was whether another court might come to a different conclusion on the evidence. The bar has now been raised in that the measure is now whether another court would come to another conclusion. A certain measure of certainty is now required that another court would differ from this court. I am not convinced that another court would differ from this judgment.
ORDER:
1. The application for rescission of the judgment granted on 16 August 2024 is granted and that order is set aside.
2. The application for leave to appeal previously enrolled is re-enrolled and to be heard on this day.
3. The mandate of the attorneys acting on behalf of the appellant is deemed to be valid.
4. The application for leave to appeal is refused with costs, costs to be for senior counsel.
Dated at Pretoria on this 19 September 2024
HOLLAND-MUTER J
Judge of the Pretoria High Court
On behalf of Respondent/Applicant: Adv R Mogagabe SC
On behalf of appellant/1st Respondent: Adv B Joseph SC
Heard on 18 September 2024
Judgment handed down on 19 September 2024
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.