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IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

 

Case No: 3933/2020

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/ NO

REVISED: YES/NO

26/09/2022 

 

In the Matter between:

SEROPANE SENYANE ALTON MPHETHI                             FIRST APPLICANT

NAPOGADI HOLDINGS (PTY) LTD                                        SECOND APPLICANT

BARUDI TRANSPORT & DEVELOPMENT                            THIRD RESPONDENT

SERVICES

NGWATO TRANSPORT & DEVELOPMENT SERVICES       FOURTH APPLICANT

And

THE PREMIER                                                                         FIRST RESPONDENT

MPUMALANGA PROVINCE

THE MEC FOR PUBLIC WORKS                                            SECOND RESPONDENT

MPUMALANGA PROVINCE AND 53 OTHERS RESPONDENTS

 

JUDGMENT: LEAVE TO APPEAL

 

Langa J

Introduction

[1]        This application for leave to appeal is against the judgment of this court granted on 3 May 2022 striking the applicants’ matter from the roll with costs, inclusive of costs attendant to the employment of two counsels. The application for leave to appeal is only in respect of the costs order.

The legal principles

[2]        It is trite that applications for leave to appeal are now governed by the provisions of Section 17(1) of the Superior Courts Act 10 of 2013 which provides as follows:

“17 Leave to appeal:

(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; (my underlining for emphasis).

(b)     the decision sought on appeal does not fall within the ambit of section 16 (2) (a); 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.”

[3]        The test has changed substantially from that ordained by the repealed Supreme Court Act 59 of 1959. Under the current Act leave to appeal may only be granted if the court of first instance is of the opinion that the appeal would have reasonable prospects of success or is arguable. The Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others LCC14R/2014, (3 November 2014) at para 6. See also Hunter v Financial Services Board 2017 JDR 0941 (GP). The concept of reasonable prospects of success is succinctly dealt in S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 3 where the Supreme Court of Appeal stated that “In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and 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 words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’  The respondents in this matter must therefore satisfy the court that the appeal would, not might, have reasonable prospects of success either on facts or the law. I now deal with the respective grounds of appeal. (my emphasis).

The grounds of appeal and the contentions by the applicants

[4]        The grounds upon which the application for leave to appeal is sought are set out in the notice of the application for leave to appeal. While the first applicant Mr Mphethi did not challenge the striking of the matter from the roll, he however, submitted on behalf of all the four applicants that the court erred in granting a costs order against the applicants. He contended that the court was unfair in ordering him to pay the costs in the application on a punitive scale. He contended further that the court erred in ordering the costs in favour of the first and second respondents and thereby committed a gross error by overlooking the points raised by the applicants in the application.

[5]        It is common cause that the matter was struck from the roll because the papers were not in order as inter alia no proper service had been effected in respect of all the respondents save for the first and second respondents. The applicants had also not served the respondents with the full bundle of the court proceedings. It is important to note that the applicants had launched the same application under a different case number (case number 679/2019) and the application was dismissed by Vukeya J on the basis that it lacked urgency and due to non-joinder. Despite having been warned by the respondents well before time that his matter was non-compliant, the first nonetheless proceeded with the application. Although the previous application was dismissed because of non-joinder, the applicants still proceeded with the current application with the same defect. Consequently, the application could not be adjudicated for the reason as well.

[6]        Furthermore, the applicants had also failed to institute their review application in time. Instead of doing so within 180 days as provided for in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000, the applicants launched the review application more than two years after becoming aware of the decision sought to be reviewed. Notwithstanding this they further did not file any application for the condonation of the late filing of the review application. On this ground also the application could not be entertained as it was out of time.

[7]        The averments by the applicants that the Court overlooked the points they raised and further that the Court failed to substantiate or provide reasons for the punitive cost order does not have any merit. Despite these averments and notwithstanding that the applicants are not appealing the striking of the matter from the roll, the applicants contended that the court erred in making a costs order which they label as unfair. They however, do not deny that the papers were not in order and that they were forewarned about it. Except to say that the court made a gross error, the applicants do not substantiate their averment that the order is unfair.

[8]        In my view, the punitive order made in this matter against the applicants was warranted. The applicant dragged the respondents to court and did not ensure that the papers were in order. The respondents were forced to litigate and instruct counsels at a huge cost because of the first applicant’s reckless conduct and don’t care attitude. Although he claims to be a layman, the applicant however, proceeded with the application notwithstanding that he had been cautioned not to proceed with the matter as it was.

[9]        After a conspectus of all the arguments before me I find that the respondents have not succeeded in showing that the appeal, if granted, would have a reasonable prospect of success or that another court may find merit in the argument raised. The application for leave to appeal the costs order is devoid of any merits and ought to be dismissed with costs. 

Order

[10]      In the result I make the following order.

1.            The application by the first to fourth applicants for leave to appeal to the full court of this division is dismissed with costs, inclusive of the costs attendant to the employment of two counsels. The first to fourth applicants to pay such costs jointly and severally, the one paying the other to be absolved.     

 

 

MBG LANGA

JUDGE OF THE HIGH COURT

 

 

Appearances:

For the Appellants:                                                 Mr Seropane SA Mphethi

Instructed by:                                                         In person

For the Respondent:                                              Advocate JL van der Merwe SC

with Advocate J Janse Van Rensburg

Instructed by:                                                         Soutie Van Rensburg Attorneys

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 26 September 2022

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