IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 13703/09

Before the Honourable Mr Justice A Le Grange
Wednesday 1 September 2010

In the matter between:

and

HUGO WIEHAHN LOUW N.O					First Respondent 
CORNELIA JOHANNA ELIZABETH LOUW N.O		Second Respondent
IGNATIUS VIUOEN N.O 					Third Respondent
IZAK BATHOLOMEAS VAN DER VYFER N.O  			Fourth Respondent 
ELSANA QUARRY (PTY) LTD 					Fifth Respondent
MINISTER OF MINERALS AND ENERGY 			Sixth Respondent 
MINISTER OF LOCAL GOVERNMENTAL, 
ENVIRONMENT AND DEVELOPMENT 
PLANNING, WESTERN CAPE  				Seventh Respondent

ORDER:

[2] The test for granting leave to appeal is well-known. An Applicant must show that there are reasonable prospects of success on appeal.

[5] It follows that the application for leave to appeal should succeed to the Supreme Court of Appeal as a result of the question of law.

[6] In respect of the second application, the Sixth Respondent abided by the decision of this Court and the First to Fifth Respondents opposed the application.

[7] It is trite that the Court to which an application for leave to execute is made, has a wide general discretion to grant or refuse leave. In the exercise of its discretion, the Court will have regard to the following factors:-
7.1. the potentiality of irreparable harm or prejudice being sustained by the Appellant if leave to execute were to be granted;
7.2. the potentiality of harm or prejudice being sustained by the Respondent on appeal if leave to execute were to be refused;

7.4. where there is the potentiality of irreparable harm or prejudice to both Appellant and Respondent, the balance of hardship or convenience, as the case may be.

[8] Having regard to the argument of counsel and weighing up all the relevant factors, I am of the view that the potential of irreparable harm and prejudice to the Applicant outweighs that of the Respondents. Moreover, the fact that the Respondents may commit a criminal offence in pursuing their mining activities is a factor that I cannot ignore. In lieu of the above, it is therefore just and equitable that the application for leave to execute should succeed.

[9]    In the result, the following order is made:-
a)	Application for leave to appeal is granted to the Supreme Court of Appeal with costs to be costs in the appeal.
b)	Application for leave to execute in terms of rule 49(11) of the Uniform Rules of this Court, is granted with costs. Costs to include the costs occasioned by the employment of two counsel.