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REPUBLIC OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

22/01/2016

CASE NO: 76408/2013

Not reportable

Not of interest to other Judges

 

In the matter between:

DANIEL FRIEDERICH BURMEISTER                                                            First Applicant

LESEDING DEVELOPMENT LIMITED                                                      Second Applicant

and

SPITSKOP VILLAGE PROPERTIES LTD                                                 First Respondent

JOHAN FRANCOIS ENGELBRECHT N.O.                                          Second Respondent

COMMISIONER FOR THE SOUTH

AFRICAN REVENUE SERVICE                                                                 Intervening Party

 

JUDGMENT - Leave to appeal

 

MAKGOKA, J

[1] This is an application for leave to appeal against the judgment of this court dismissing the applicants' application to order business rescue proceedings in respect of the first respondent. The application is opposed, on the one hand, by the first and second respondents, and the intervening party, on the other - the same parties who opposed the main application.

[2] The common law test in an application for leave to appeal has always been whether there are reasonable prospects that another court, given the same set of facts, might arrive to a different conclusion. That test has been codified by s 17 of the Superior Court Act 10 of 2013, in terms of which leave to appeal may only be given where a judge is of the opinion that the appeal would have reasonable prospects of success. (My underlining for emphasis).

[3] I have had careful and dispassionate regard to the applicants' grounds of appeal, which amount to no more than a regurgitation of the arguments advanced in the main application. Each of the grounds has been dealt with fully in the judgment, and it would serve no purpose to repeat what is stated there. The applicants' insurmountable obstacles include, among others, the views of the main creditor, SARS, who opposed the application; the fact that both this court and the Supreme Court of Appeal have found that the substratum of the first respondent had disappeared; and the paucity of the information as to the reasons why the first respondent landed in financial difficulty; the lack of sufficient particularity as to the business rescue plan.

[4] For all the above considerations, I am not persuaded that any other court would come to a different conclusion. The application falls to fail, and in the result the following order is made:

1. The application is dismissed with costs, such costs to include the costs of two counsel where such counsel were employed, to be paid by the applicants jointly and severally, the one paying the other to be absolved.

 

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T.M. Makgoka

Judge of the High Court

 

Heard: 19 January 2016

Judgment delivered: 22 January 2016

 

Appearances:

For the Applicants: Adv. L.K. Van der Merwe

Instructed by: Cawood Attorneys, Pretoria

For the First and Second Respondents: Adv. J Vorster

Instructed by: Leahy & Van Niekerk Inc., Pretoria

For the Intervening Party: Adv. H.G.A Snyman SC Adv. C. Naude

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