REPUBLIC OF SOUTH AFRICA
          
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

                                                                                CASE NO:

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         9/3/2017……..		………………………...
                   DATE			        SIGNATURE

  28384/14

In the matter between:

MIKE BUYSKES CONSTRUCTION (PTY) LTD		    First Applicant

DEREK BONHEIM						          Second Applicant

and

BROOKHAVEN PROJECTS CC					            Applicant
______________________________________________________________ 

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

MAKUME, J:

[1]	On the 17th April 2015 in an application for review before me I found in favour of the Respondent and set aside the arbitration award of the Second Applicant.  This application for leave to appeal is against that judgment.
[2]	The Applicants wish to pursue the appeal before the Supreme Court of Appeal alternatively before the Full Bench of this Division.  Section 17(1) of the Supreme Court Act No 10 of 2013 enjoins me to grant the application if I am of the opinion that the appeal would have a reasonable prospect of success or that there is some other compelling reason why the appeal should be heard.

[3]	I have listened to the submissions by counsel on behalf of the litigants in this matter and in particular the Applicants drew my attention to paragraphs 22 and 33 of my judgment and argue that my judgment is based on a wrong analysis of facts.  In paragraph 22 I referred to the letter of the 7th May 2012 which should in fact be the 7th May 2013 as being a letter from the Respondent’s attorneys (Applicant in the court a quo) when in fact it was the other way round.  That letter emanated from the First Respondent.  In paragraph 33 it was argued that I made a finding that good cause had been shown to grant condonation and did not furnish reasons for my finding.

[4]	My attention was also drawn to the findings in the matter of Florence v Government of RSA 2014 (6) SA 456 and at page 492 paragraph [114] wherein Moseneke ACJ held as follows:

	“[114]	However when a court of first instance even though vested with a strict or true discretion has not acted in a judicial manner, an appeal court may intrude to ensure a lawful and just outcome.  The intervention would be in the interest of justice as the appeal court imposes fidelity to the law. The appellate court would be doing no more than correcting an instance where –

‘the court has exercised its statutory power capriciously or was moved by a wrong principle of law or an incorrect appreciation of the facts or has not brought its unbiased judgment to bear on the issue, or has not acted for substantial reason.’”

[5]	I am satisfied that the appeal is fairly arguable even though I still hold the view that there is no prospect of success. However, the issues raised in the application for leave to appeal have persuaded me to come to the conclusion that there are some compelling reasons why I should grant leave to appeal and I accordingly do so.

ORDER

[6]	
	6.1	Application for leave to appeal is granted.

	6.2	The appeal shall be heard by the Full Bench of this Division.

	6.3	The costs of this application shall be costs in the appeal.

DATED at JOHANNESBURG on this the          day of MARCH 2017.

			      ___________________________________________
						  M A MAKUME
			       JUDGE OF THE HIGH COURT OF SOUTH AFRICA
			         GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE APPLICANTS	ADV L W DE KONING SC

INSTRUCTED BY			MESSRS MARK-ANTHONY BEYL ATTORNEYS
					JOHANNESBURG
					Tel:  (011) 333-7790

COUNSEL FOR THE RESPONDENT	ADV G D WILKINS

INSTRUCTED BY			MESSRS VAUGHAN HATTINGH ATTORNEYS
					LANSERIA
					Tel:  (011) 648-9500

DATE OF HEARING

DATE OF JUDGMENT