Groupline Projects (Pty) Ltd and Another v Aviocean Global (Pty) Ltd and Another (Leave to Appeal ) (24139/2020) [2023] ZAGPJHC 1508 (18 September 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2023 >> [2023] ZAGPJHC 1508 | Noteup | LawCite sino index ## Groupline Projects (Pty) Ltd and Another v Aviocean Global (Pty) Ltd and Another (Leave to Appeal ) (24139/2020) [2023] ZAGPJHC 1508 (18 September 2023) Groupline Projects (Pty) Ltd and Another v Aviocean Global (Pty) Ltd and Another (Leave to Appeal ) (24139/2020) [2023] ZAGPJHC 1508 (18 September 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_1508.html sino date 18 September 2023 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NUMBER: 24139/2020 1. REPORTABLE:  NO 2. OF INTEREST TO OTHER JUDGES:  NO 3. REVISED:  NO Judge Dippenaar In the matter between: GROUPLINE PROJECTS (PTY) LTD                                   FIRST APPLICANT RAMOKONE THANDY MOKGOBU                                     SECOND APPLICANT AND AVIOCEAN GLOBAL (PTY) LTD                                         FIRST RESPONDENT THE SHERIFF KEMPTON PARK                                         SECOND RESPONDENT LEAVE TO APPEAL JUDGMNET Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by e-mail. The date and time for hand-down is deemed to be 11h30 on the 18 th of SEPTEMBER 2023. DIPPENAAR J : [1]  For ease of reference, the parties will be referred to as in the main application proceedings, wherein the applicants sought a stay of execution and rescission of a judgment granted by default against them in favour of the first respondent. [2]  The applicant applied for leave to appeal against the judgment and orders granted by me on 19 June 2023. Leave to appeal was sought to the Full Bench of this Division. The first respondent was the only party which opposed the proceedings and shall be referred to as “the respondent”. [3]  In terms of the order, I dismissed the applicants’ rescission application, directed the applicants to be liable for the costs of the application on an attorney and client scale and directed that the applicants’ attorneys be liable jointly and severally with the applicant’s for a portion of those costs on a de bonis propriis basis, being the costs of the proceedings in the urgent court before Lamont J on 16, 17 and 18 February 2021. [4]  Although the notice of application for leave to appeal was served on the respondent on 10 July 2023, the correct procedure pertaining to applications for leave to appeal was not timeously observed and a notification from the Registrar was only received on 4 September 2023 that such application had been lodged, whereafter a mutually convenient date for the hearing was set. [5] I have considered the papers filed of record and the grounds set out in the application for leave to appeal as well as the parties’ extensive arguments for and against the granting of leave to appeal. I have further considered the submissions made in their respective heads of argument and the authorities referred to by the respective parties. [6] The parties accepted that the application for leave to appeal was brought both by the applicants and their attorneys of record, although the notice of application for leave to appeal did not expressly state this. I shall consider the application on that basis. [7] Leave to appeal may only be granted where a court is of the opinion that the appeal would have a reasonable prospect of success, which prospects are not too remote [1] . An applicant for leave to appeal faces a higher threshold [2] than under the repealed Supreme Court Act. [3] A sound rational basis for the conclusion that there are prospects of success must be shown to exist. [4] [8] In their application for leave to appeal, the applicants raised various grounds for leave to appeal in support of the contention that there are reasonable prospects of success that another court would grant a different order as envisaged by s 17(1)(a) of the Superior Courts Act [5] . They also contended that there are compelling reasons to grant leave to appeal as envisaged by s 17(i)(a)(ii) of the Act. During argument, emphasis was placed by the applicant on the procedural grounds and the costs grounds. [9] The respondent argued that the application for leave to appeal was fatally defective as it did not comply with r 49(1)(b) and 49(3) as the applicants did not set out the grounds for leave to appeal clearly and succinctly in clear and unambiguous terms, to enable the court and the respondent to be properly and fully informed of the case the applicants sought to make out. [6] [10] Although there is merit in this complaint as the grounds are stated by the applicants in very broad terms, the application will be determined on its merits. [11] My judgment is comprehensive and I stand by the reasons set out therein. [12] Insofar as the appeal is aimed at the finding that the applicants’ notice of withdrawal was defective and the order that the rescission application was to be dismissed, any appeal against that order would be academic and would have no practical effect. [7] Save in exceptional circumstances, the question whether  the decision would have no practical effect is to be determined without reference to any consideration of costs. [8] [13] Thus, even if I were to have been wrong in concluding that the rescission application fell to be dismissed, it was common cause that the judgment debt underpinning the rescission application has been paid and that the issues underpinning that application have become moot. [14] The issues underpinning the merits of the application are thus moot and an appeal would be academic and have no practical effect on the parties. [15] Even if it were to be accepted that the applicants had properly withdrawn their rescission application in March 2021, this court was seized with the issue of costs under r 41(1)(c). [16] The remainder of the grounds raised in the application for leave to appeal are aimed at the costs orders granted. Those orders were granted pursuant to the exercise of a discretion. [17] The applicants argued that this court did not apply the rules correctly and so incorrectly applied its discretion. It was further contended that no opportunity was given to their attorney to deliver submissions and it could not be accepted that the withdrawal of the rescission application was unbecoming conduct on the part of the attorney. [18] Considering the applicable principles and the facts, I am not persuaded that the argument bears scrutiny. [19] The argument further disregards that no opportunity was sought by the applicants attorney at the hearing to either deliver such an affidavit nor was a postponement sought in order to do so, despite having been forewarned as early as 26 February 2021, when the respondent’s initial answering affidavit [9] was delivered, that the respondent took issue with the conduct of the applicants’ legal representatives  and that the respondent was seeking a de bonis propriis costs order against on an attorney and own client scale. The applicants were again notified of the respondent’s intention to seek such a costs order in their supplementary affidavit and in their heads of argument. [20] Had the applicants’ attorney sought an opportunity to deliver an affidavit dealing with the de bonis propriis costs issue at the hearing, it would have been granted. The applicants further disregarded that an opportunity was afforded to the applicants to deliver supplementary heads of argument after the hearing, which they did. Again, no opportunity was sought for the attorney to deliver any affidavit in response to the de bonis propriis costs order sought by the respondent. [21] Moreover, the applicants’ argument misconceives that the only portion of the costs order granted on a de bonis propriis basis (jointly the costs order granted against the applicants), related to the conduct of the applicants’ legal representatives during the proceedings before Lamont J as complained of by the respondent in its initial answering affidavit already which was again raised in its supplementary affidavit. [22] It is trite that courts of appeal will not lightly interfere with the granting of a costs order. In awarding costs, a court exercises an unfettered discretion [10] An applicant is constrained to illustrate exceptional circumstances [11] and must show a misdirection of principle or fact [12] , even where costs orders are granted de bonis propriis. [13] [23] In applying the relevant principles to the grounds advanced in the notice of leave to appeal and in argument, I am not persuaded that the applicants have illustrated exceptional circumstances justifying the granting of leave to appeal or that they have shown any misdirection in relation to the costs order granted. [24] In applying the relevant principles to the grounds advanced in the notice of application for leave to appeal and in argument when measured against the facts, I conclude that the appeal would not have a reasonable prospect of success as contemplated in s17(1)(a)(i) of the Act. [25] I further conclude that on a consideration of all the facts, the applicant has not illustrated compelling reasons to grant leave to appeal as contemplated in s17(1)(a)(ii) of the Act, as broadly suggested by the applicants in their notice of application for leave to appeal. [26] It follows that the application must fail. There is no reason to deviate from the normal principle that costs follow the result. [27] I grant the following order: The application for leave to appeal is dismissed with costs. EF DIPPENAAR JUDGE OF THE HIGH COURT JOHANNESBURG APPEARANCES DATE OF HEARING :                                      11 September 2023 DATE OF JUDGMENT :                                   18 September 2023 APPLICANT’S COUNSEL :                              Adv. E Sithole APPLICANT’S ATTORNEYS :                         Theko Attorneys Inc. RESPONDENT’S COUNSEL :                          Adv. KD Iles RESPONDENT’S ATTORNEYS :                     Prinsloo Inc. [1] Ramakatsa and Others v African National Congress and Another [2021] JOL 49993 (SCA) para [10] [2] S v Notshokovu Unreported SCA case no 157/15 dated 7 September 2016, para [2] [3] 59 of 1959 [4] Smith v S [2011] ZASCA 15 ; MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176 , para [17];  Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 452 (SCA) para [34] [5] 10 of 2013 [6] Songono v Minister of Law and Order 1996 (4) SA 384 (E) at 385I-J and 385G; Lombardy Development (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Another [2021] ZAGPPHC 886 at paras [23]-[26] [7] Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) at 247A-B; Coin Security Group (Pty) Ltd v SA National Union for Security Officers 2001 (2) SA872 (SCA) at 875A-D [8] S 16(2)(a)(ii) of the Act [9] Para 114 [10] Ferreira v Levin NO and Others; Vryenhoek & Others v Powell NO and Others [1996] ZACC 27 ; 1996 (2) SA 621 (CC) para [3] [11] Khumalo v Twin City Developers [2017] ZASCA 143 paras [57]-[58]; Section 16(2)(a) of the Superior Courts Act. [12] Trencon Consitruction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) para [88] [13] Zuma v Office of the Public Protector and Others [2020] ZASCA 138 Paras [19]-[20] sino noindex make_database footer start