IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

						       CASE NO:  51140/2018
						             DATE:  2019-12-09

DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE:  YES / NO.
(2) OF INTEREST TO OTHER JUDGES:  YES / NO.
(3) REVISED.

DATE                         SIGNATURE	

	
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]

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…………………………..
SRIJDOM AJ
JUDGE OF THE HIGH COURT
DATE:  …………………