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. 

         ……2017-10-10…..		………………………...
                   DATE			        SIGNATURE

 15131/2016

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 30th 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.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, 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.

[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.

					___________________________________
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