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IN THE HIGH COURT OF SOUTH  AFRICA

NORTHERN  CAPE DIVISION, KIMBERLEY

Case No: 918/2011 Heard on: 22/09/2017

Delivered on:   06/10/ 2017

In the matter between: 

HEIN AUGUSTYN                                                                                             APPLICANT

And

THE MINISTER OF DEFENCE                                                                     RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

MAMOSEBOJ

[1] The applicant, Hein Augustyn, seeks leave  to appeal to the Full Bench of the Northern Cape Division against the whole of my judgment and order granted on 07 July 2017 in which I dismissed his special plea with  costs.

[2] The grounds upon which the applicant relies are that I erred in finding:

2.1             That the matter of Holeni v Land Agricultural development Bank of SA[1]  finds application  in casu   while the facts are distinguishable;

2.2            That the claim arose from an advance or loan granted by the respondent to the applicant;

2.3            That the debt does not fall under s I 1(d)[2] which prescribes after a period  of three years;

2.4            That the respondent has made out a case that  his  debt  is  covered under s  1 I (b) of the Act.

[3] The contention by the applicant is that another Court could reasonably arrive at a different conclusion than that which I have reached. The test to be applied  in  determining  whether  an  application  for  leave  to  appeal

should be granted or not is governed by s  17[3] which  stipulates:

"(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 prospects of success; or (ii)there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) The decision sought on appeal does not fall within the ambit of s 16(2)(a),· and

(c)  Where the decision sought to be appealed does not dispose of all issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. "

[4] In S v Smith[4] Plasket AJA stressed:

''[7] What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court  of appeal could reasonably arrive at a  conclusion  different  to  that  of  the trial court. 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. "

As reiterated  by Leach  JA in S v Kruger[5]   the Courts should follow   the aforementioned test scrupulously in the interests of justice.

[5] Following the submissions by counsel the crux of the dispute in this  matter is whether this claim falls under s 11(b) or (d) of the Prescription Act[6] Adv Olivier, for the applicant, reiterated the  common  cause  in  as far as the respondent being the State and therefore  meeting  the  first  leg of the requirement in 11(b). Counsel's further submission was that the use of the conjunction "and" between the first leg of the requirement and the second leg, that is, "and arising out of an advance or loan of money", makes it imperative for the second requirement to also be met, which has not been met and therefore the dispute must fail. I do not agree for the reasons that follow.

[6] It is common cause that the respondent is the state. This means that a determinable amount of money came from the fiscus or  budget  of the state to pay for the training of the applicant in return for his services for a determined period. The condition attached was that should he leave  before the expiry of that period he will have to repay, not to an individual but the state, the apportioned amount of what was due and owing to the state. The applicant sought to convince me that this second leg of the requirement  was not met because there was no advance or loan awarded  to the applicant. This argument misses the mark. What is not  in  contention is that an amount of money was allocated for his training on terms and conditions he agreed to and which amount is now due and payable because he breached them.

[7] Having regard to the above guidance by the Supreme Court of Appeal

and having dispassionately considered the application I am  of the view that the main judgment has adequately dealt with the aspect  that  the period of prescription is indeed 15 years under s 11(b) of the Prescription Act. The main judgment demonstrates adequately how I followed the Holeni judgment and requires no repetition. I am satisfied that the applicant has no reasonable prospects of success on appeal and his application stands to fail. I am not swayed that a court of appeal could reasonably arrive at a conclusion different to the one that I have reached.

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

The application for leave to appeal is dismissed with  costs.

_________________________

MAMOSEBO J

 

NORTHERN CAPE HIGH COURT

For the applicant:                       Adv AD Olivier

Instructed by:                             Haarhoffs Inc

For the respondent:                   Adv S Motloung

Instructed by:                             The State Attorney

 

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