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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

                                                       CASE NO:  51140/2018

                                                             DATE:  2019-12-09

 

       

In the matter between

M J BEKKER                                                                      Applicant

and

PRIDE MILLING COMPANY                                               Respondent

       

JUDGMENT (LEAVE TO APPEAL)

 

STRIJDOM, AJ:   The Court proceeds with the ex tempore judgment in this application.

1.     In this matter the applicant seeks leave to appeal to the full court of the High Court of South Africa,       Gauteng Division against the judgment of this Court        handed down on 4 November 2019, specifically the   granting of the respondent’s application and the       dismissal of the applicant’s counter-application with        costs.

3.     In broad terms the following are the major         misdirections alleged to have been committed:

3.1   The learned judge erred in not adequately considering      the factors as compiled by Pincus, AJ in Lane N.O. v      Olivier Transport 1997 (1) SA 383 (C) at page 386 D -   387 B.

3.2   The learned judge erred in the interpretation of the   remark by the learned Judge Sutherland in the matter     of Engen Petroleum Limited v Goudis Carriers (Pty)        Ltd (In Liquidation) 2015 (6) SA 21 (GJ) where the         learned judge remarked the following, and I quote:

                “The scope for the discretion is itself a     cue to limitation.  It is exercised in the favour of the ensnared creditor only if by         so doing the general body of creditors is   not disadvantaged by a diminution of      assets to divvy up among them.”

3.3   The learned judge erred in finding on a conspectus of       the evidence before the Court that the primary test        was to establish whether the general body of creditors would not be disadvantaged by the dispositions and         that little weight should be attached to the hardship of      the applicant and that the focus ought to be on the        body of the creditors.

3.4   The learned judge erred in finding that the applicant should pay the costs of the main application and the        counter-application. 

4.     It was submitted by counsel for the applicant that the        appeal has reasonable prospects of success.

5.     There are now three requirements for the granting of        leave to appeal pursuant to section 17(1) of the     Superior Court Act 10 of 2013 namely that there is a       reasonable prospect of success; that the amount is         not trifling and is a matter of substantial importance to one or both of the parties concerned and further that a practical effect or result can be achieved by the appeal.

6.     What the test of reasonable prospects of success     postulates is a dispassionate decision based on the facts and the law.  That the Court of Appeal could     reasonably arrived at a conclusion different to that of        the trial court.  In order to succeed therefore the    applicant must convince the Court on proper grounds   that he has prospects of success on appeal and that         these prospects are not remote but have a realistic   chance of succeeding.

7.     More is required to be established than that there is a      mere possibility of success, that the case is arguable        on appeal or that the case cannot be categorised as hopeless.  There must be a sound rational basis        for the conclusion that there are prospects for success     on appeal.

8.     In the present matter when the facts were examined there were a number of considerations which militated against another court coming to a different conclusion.

9.     In respect of all the grounds of appeal raised my       judgment deals extensively with the facts and law as         presented by the parties and how the Court arrived at each conclusion on the contentions raised by the         applicant in the application for leave to appeal.

10.   On all these issues there is in my view no prospect of       another court arriving at a different conclusion.  The      matter has no prospect of success deserving neither      the Supreme Court of Appeal or the full court of this         division.

11.   In the result the application for leave to appeal is     dismissed with costs.

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MR VAN DER MERWE:  As the Court pleases M’Lord.

MR VOSTER:            May it please you M’Lord.

COURT:                   The court will adjourn.

COURT ADJOURNS                                                  [13:29]- - - - - - - - - - - - - -

 

 

…………………………..

SRIJDOM AJ

JUDGE OF THE HIGH COURT

DATE:  …………………

 

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