YA-Rena Civils (Pty) Ltd v Magalies Water and Another (M372/2018) [2020] ZANWHC 49 (11 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: M372/2018

In the matter between:

YA-RENA CIVILS (PTY) LTD

APPLICANT

AND

MAGALIES WATER 1ST RESPONDENT

S & W LIMPOPO CONSULTING ENGINEERS 2ND RESPONDENT

LEAVE TO APPEAL JUDGMENT

DJAJE J

[1] The applicant brings this application to appeal the judgment and order of this court. The order was granted on 30 May 2019 and the reasons furnished at a later stage. The order made was as follows:

“1. That: Points in limine on lis alibi pendens is upheld

2. That: Application is dismissed with costs”

[2] The test to be applied in an application for leave to appeal is set out in section 17 (1) (a) of the Superior Courts Act 10 of 2013 which provides that:

(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;”

[3] This application is made on various ground however they all deal with the issue of whether this court properly upheld the point in limine of lis alibi pendens.

[4] The applicant submitted that the cause of action in the action pending before court is a payment certificate which is a liquid document when the claim in the application is based on the contract. Further that the subject matter in the action is payment when in the application is contractual. The applicant argues that the court should have exercised its discretion and stayed the proceedings instead of dismissing the application on the basis of lis alibi pendens. It is the applicant’s case that there are prospects of success on appeal.

[5] In contention the respondent submitted that the applicant has failed to make out a case

demonstrating reasonable prospects of success. The respondent argues that both the action and the application are based on the same central issue which is penalties imposed by the first respondent as a result of the work done by the applicant in relation to the same contract. The applicant is not barred from proceeding with the action but not the application.

[6] The grounds raised by the applicant in this leave to appeal was dealt with in the judgment with reference to the case of Socratous v Grindstone Investment 2011 (6) SA 325 (SCA). I do not wish to repeat the reasons in the judgment except to reiterate that subject matter and the cause of action in the action and the application are the same and one cannot be resolved without the other.

[7] After careful consideration of the submissions on behalf of both the applicant and the respondent, I am of the view that there are no reasonable prospects that another Court would come to a different conclusion. Consequently the application must fail. There is no plausible reason why costs should not follow the result.

Order:

[8] Consequently, the following order is made:

1. The application for leave to appeal is dismissed.

2. The applicant is ordered to pay costs of the application.

______________________________

J T DJAJE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING

: 03 JUNE 2020

DATE OF JUDGMENT

: 11 JUNE 2020

COUNSEL FOR THE APPLICANT

: ADV VAN RHYN

COUNSEL FOR RESPONDENT : ADV LEKOKOTLA