H v SH - Leave to Appeal (44450/2020) [2023] ZAGPJHC 1387 (27 November 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 1387 | Noteup | LawCite sino index ## H v SH - Leave to Appeal (44450/2020) [2023] ZAGPJHC 1387 (27 November 2023) H v SH - Leave to Appeal (44450/2020) [2023] ZAGPJHC 1387 (27 November 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_1387.html sino date 27 November 2023 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO :  44450.2020 DATE :  27-10-2023 REPORTABLE: NO OF INTEREST TO OTHER JUDGES:NO REVISED Date: 27/11/2023 In the matter between H Applicant And SH Respondent J U D G M E N T (EX TEMPORE) LEAVE TO APPEAL INGRID OPPERMAN, J :  This is an application for leave to appeal to the Supreme Court of Appeal alternatively to the Full Court of the Gauteng High Court Johannesburg, against the whole of the judgment and order made by me which order is contained in the judgment electronically circulated on or about 12 September 2023.  The order which I granted reads as follows: "The Rule 45A application comprising of notices of motion dated 26 October 2022, 19 June 2023 and 22 June 2023 is dismissed with costs as between attorney and client.” In the body of the judgment, (which judgment should be read with this judgment and to which I shall refer to as “ the main judgment ”) and in particular paragraphs 4 and 5 thereof, I deal with the ancillary relief which was sought which includes the setting aside and suspension of two writs of execution. I define the entire application to include such ancillary relief: "Mr H’s entire suspension focussed application I shall refer to as the rule 45A application.” I thus deal with the writs expressly in the order when the application was dismissed. It is of some importance as today during the application for leave to appeal something was made of the fact that I did not deal with this feature separately however as indicated in the main judgment, it was ancillary and was incorporated into the dismissal in the final order. In the decision of Dexgroup (Pty) Ltd vs Trustco Group International (Pty) Ltd and Others 2013 (6) SA 520 (SCA) Wallis, JA observed that a Court should not grant leave to appeal and indeed is under a duty not to do so where the threshold which warrants such leave has not been cleared by an applicant in an application for leave to appeal. Paragraph 24 of the judgment he held as follows: "[24]...The need to obtain leave  to appeal is a valuable tool in ensuring that scare judicial resources are not spent on appeals that lack merit.  It should in this case have been deployed by refusing leave to appeal.” I have considered the extensive application for leave to appeal and nothing argued has persuaded me that another court would find differently.  This is particularly so as I exercised a discretion which discretion will only be interfered with under very limited circumstances by a court of appeal and an attack on the exercise of the discretion was expressly disavowed by Mr Jagga during his oral address and during his replying argument. It is the application by this court of rule 45A to the facts of this case which is under attack in this application for leave to appeal. As correctly argued by Mr Dollie, Court orders are appealed and not the reasoning underpinning such orders.  Insofar as I might have been wrong in my finding relating to the Pactum de non petendo or the rule 45A legal construction, no attack in this application for leave to appeal has been focused on the manner in which I exercised the discretion in my conclusion which I reached and which is recorded in paragraph 75 of the main judgment: "For all these reasons, I conclude that the interests of justice dictate overwhelmingly that paragraph [14] of Victor J’s order are not to be suspended.” In the absence of factors which would sway a court of appeal to interfere with this discretion, I am unable to conclude that another court would conclude differently.  This holds true too, to the appeal launched in respect of the punitive costs order where it is incumbent upon an applicant to persuade a court that exceptional circumstances exist which warrants the granting of leave which feature was not addressed at all during the argument before me today. In my view, the application which was launched warranted punitive costs for the reasons set out in the main judgment and nothing argued today has persuaded me that the application ought to have been brought, or, ought to have been brought on the facts and evidence placed before the court. In my view it follows that I should grant a similar costs order in respect of this application for leave to appeal.  I therefor make the following order. ORDER The application for leave to appeal is dismissed with costs as between attorney and client. OPPERMAN, J JUDGE OF THE HIGH COURT DATE :  ……27/11/2023…… sino noindex make_database footer start