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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 15131/2016

Not reportable

Not of interest to other judges

Revised.

10-10-2017

In the consolidated application between:

LITTLE GREEN BEVERAGES (PTY) LTD                                                       APPLICANT

and

SWITCHING HOUSE (PTY) LTD                                                                  RESPONDENT

J U D G M E N T

 

SENYATSI, AJ:

INTRODUCTION

[1]. This is an application for leave to appeal against the judgment I handed down on the 30^th of June 2017 for the winding up of the Respondent.

[2]. The Respondent raises various grounds of appeal. More importantly that the Court erred in finding that the Respondent was indebted to the Applicant whilst noting that ISP Cash was in possession of the cash from the customers of the Applicant.

[3]. The grounds of appeal are 15 in number. The Respondent”s Legal Representative submitted that the decision raises an important question of law because of its general application to the suppliers of services similar to that of the Respondent. It was also submitted that that the decision raises the legal question as to whether the Respondent should be regarded as a debtor of the Applicant in the circumstances where it is not in possession of money paid to it by the Applicant and or any of the Applicant’s clients and customers.

[4]. The leave to appeal is being opposed by the Applicant. The Applicant submitted that the Respondent must satisfy the provisions of section 17 of the Supreme Court Act, 10 of 2013, (“the Act”).

[5]. The issue for determination is therefore whether or not the Respondent has satisfied provisions of section 17 (1) of the Act.

[6]. In order to make that determination, it is crucial to restate the provisions of section 17 (1) of the Act. That section provides as follows:

“(i) 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.”

[7]. The provisions of section 17 (1) (a) are a departure from the traditional test to apply where consideration leave to appeal. The traditional test was that of determining whether there are reasonable prospect of success on appeal if leave to appeal was to be granted.[1]an application for leave to appeal, governed as it is now by section 17 (1) (a) must now meet a higher standard and is more stringed than the traditional test.

[8]. In Van Tonder v Master of the High Court,[2] Molahlehi AJ, held in an unreported case in applying the new test as provided for in section 17 (1) (a) as follows:

“[5] There is generally an agreement between the authorities that the test for leave to appeal introduced by section 17 of the Act has placed the standard much higher and is more stringent than the traditional test.”

[9]. The authorities further agree that the threshold to grant a party leave to appeal is now only granted in the circumstances set out in section 17 (1) (a) and is deduced from the word “only” used in that section.[3]

[10]. I have considered the argument submitted on behalf of the Respondent for leave to appeal. I have also considered the submissions made on behalf of the Applicant in opposition to the application for leave to appeal.

[11]. In consideration in all the arguments and the merits of the case, I am not persuaded that the Respondent has passed the threshold as provided by section 17 (1) (a) of the Act.

[12]. As a consequence, I am of the view that no other court will come to a different conclusion. The application should therefore fail.

 

Order

[13]. The application for leave to appeal is dismissed with costs.

 

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M SENYATSI

ACTING JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Appearances

For the Applicant: L Janse Van Rensburg

Instructed by: BBM Attorneys, Cape Town; Symington & De Kock, Bloemfontein

For the Respondent: H Obermeyer

Instructed by: Director of Public Prosecutions, Grahamstown; Director of Public Prosecutions, Bloemfontein

 

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