CIVIL PRACTICE – APPEAL – APPLICATION FOR LEAVE TO APEAL – COUNSEL’S SUBMISSIONS GOING AGAINST AUTHORITIES

CIVIL PRACTICE – APPEAL – APPLICATION FOR LEAVE TO APEAL – COUNSEL’S SUBMISSIONS GOING AGAINST AUTHORITIES

On 3 August 2022, the court refused the applicants application to amend its pleadings, after it found that the proposed amendment introduced a new cause of action; that applicants failed to show that the proposed amendment arose out of the same facts or substantially the same facts as the cause of action in respect of which relief was already claimed in the action already instituted. The applicant applied for leave to appeal the court’s refusal of the amendment.

The Court found that applicants failed to establish that in the exercise of the court’s discretion in the case to be appealed from was not on judicial grounds and for a sound reason on the basis that it was tainted with caprice or bias or the application of the wrong principle to support applicants’ contention that a reasonable possibility exists that another court would reach a different conclusion and that there are reasonable prospects of success on appeal.

PARKER AJ thus held that:

1. It is not sufficient to state that reasonable possibility exists that another court would reach a different conclusion. Applicant must also indicate clearly reasonable prospects of success.
2. Proof that a reasonable possibility exists that another court would reach a different conclusion and that there are reasonable prospects of success on appeal lies in establishing that the exercise of the court’s discretion in the case to be appealed from was not on judicial grounds and for a sound reason on the basis that it was tainted with caprice or bias or the application of the wrong principle.
3. Where the proposed amendment introduced a new cause of action such amendment would be allowed only if the new cause of action arises out of the same facts or substantially the same facts as the cause of action in respect of which relief has already been claimed in the action already instituted based on the res gestae rule of evidence.
4. Applicants’ counsel’s submission in support of the application goes against the authorities on application for leave to appeal.

In the result, the application for leave to appeal was dismissed with costs in terms of rule 32(11) of the Rules of Court.

High Power Holding Investment (Pty) Ltd v Imprint Investment (Pty) Ltd NAHCMD 14 September 2022