Abromowitz v Jacquet and Another (3)

• Jurisdiction: South Africa
• Citation: 1950 (3) SA 378 (W)

Abromowitz v Jacquet and Another (3)
1950 (3) SA 378 (W)

1950 (3) SA p378

Citation	1950 (3) SA 378 (W)
Court	Witwatersrand Local Division
Judge	Roper J
Heard	April 12, 1950
Judgment	April 17, 1950

Flynote : Sleutelwoorde A

Appeal — Superior Court — Leave to appeal — When granted — Important point of practice involved — Decision thereon not finally settling dispute between parties.

Headnote : Kopnota

Where a Court in granting provisional sentence on a promissory note had B held that presentment could be proved otherwise than by a notarial certificate of presentation and another Court in the same Division had a few days earlier come to an opposite conclusion in a matter in which the same point was involved,

Held, that an application for leave to appeal should be refused on the ground that, though the point was admittedly an important one of C practice, a decision thereon would have no effect in bringing the dispute between the parties to finality; that the appeal would only cause expense and delay and keep the holder of a liquid document for a substantial period of time out of his right to payment. D

Case Information

Application for leave to appeal from a decision reported in 1950 (2), S.A.L.R. 564.

L. O. Miller, for the applicants: Leave to appeal is necessary. See Kowarsky v Sable (1923, W.L.D. 156); Hattingh v Booth (1928 NPD 339). The point at issue is an arguable one, see Kowarsky v Sable E (supra); Inglestone v Pereira (W.L.D. 18/11/1938, not reported); Campbell Bros. & Carter Ltd v Abrahams (1937, W.L.D. 11). In Johannesburg Suburban Properties Ltd v Port (1950 (2), S.A.L.R. 686) the Court held in a similar matter that proof of presentation must be by notarial certificate.

L. Pinshaw, for the respondent: The case of Johannesburg Suburban Properties Ltd v Port (supra), was not fully argued. The Court has a discretion to grant or refuse leave to appeal and it should not in the present matter exercise it discretion in the applicant's favour. Leave G to appeal should not be granted on a purely technical point of procedure when no principle of law is involved and no injustice is done to the applicant. See Oosterhuys v Lazarus (1916 TPD 561); Smith and Boder v Edwards (1917 AD at p. 399); McKay v du Toit (1923 AD 395); Stellenboom v Bhyat (1938 AD 317). In interlocutory matters leave to appeal should not be granted when it cannot be shown H that some benefit is likely to accrue to the party wishing to appeal and that there is no inconvenience to the other side. See Robertson v International Correspondence College (1910 CPD 73). The balance of inconvenience is an important factor which must be taken into serious account, see Mahomed v Shoogaree (1913 NPD 349); Dickenson v Lister's Executors (1914 AD 428); de Wet v Joubert (1931 CPD 123); Nepgen v Brown (1918, W.L.D. 169); Gerst v. F

1950 (3) SA p379

Swede (1948 (4), S.A.L.R. 206); Vorster v Louw (W.L.D. 15 Nov., 1949, not reported). The application for leave to appeal is not a mere formality and the mere fact that there is an interesting and difficult question of law involved is not a ground for granting leave to appeal. A See Kramer v Coloured Vigilance Committee (1948 (1), S.A.L.R. 1223).

Miller, in reply: In view of the conflict of decisions it is important to practitioners that the decisions be settled. If defendants are obliged to go into the principal case they must first satisfy the B judgment but this is not so if leave to appeal is granted. The respondent would not be prejudiced as defendants could be ordered to provide security for costs of appeal. See van Copenhagen v van Copenhagen (1947 (1), P.H. F. 9). Defendants are prepared to assist in having the appeal heard early cf. Meer v Industrial Credit Corporation (1947 (2), S.A.L.R. 805).

Cur. adv. vult. C

Postea (April 17th).

Judgment

D Roper, J.:

The defendants have now applied for leave to appeal from my order granting provisional sentence against them. As a provisional sentence is interlocutory, leave to appeal therefrom is necessary under sec. 37 of Proc. 14 of 1902.

E Mr. Miller, for the defendants, urged that the main point involved in the judgment, namely whether presentation of the note for payment was provable otherwise than by notarial certificate of presentment, was fairly arguable and also involved an important question of practice, and that on those grounds leave to appeal ought to be granted. He referred F me, among other authorities, to Kowarsky & Co v Sable (1923, W.L.D. 156), in which TINDALL, J., granted leave to appeal against a provisional sentence on the ground that the point involved was...