About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 94
|
|
Nieuwoudt v Stephanus (2014/24159) [2015] ZAGPJHC 94 (28 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2014/24159
DATE: 28 MAY 2015
In the matter between:
DREYER AND
NIEUWOUDT
................................................................................................
Applicant
And
MARTIN,
STEPHANUS
.......................................................................................................
Respondent
JUDGMENT ON APPLICATION
FOR LEAVE TO APPEAL
MAKUME, J:
[1] This is an application in which the
applicant seeks leave from me to appeal my judgment of the 12th March
2015. The applicant
wishes to pursue the appeal to the Supreme Court
of Appeal or to the Full Court of this Division.
[2] Besides the lengthy grounds of
appeal filed on the 27th March 2015 the applicant on the 4th May 2015
filed and served an affidavit
in which affidavit applicant indicates
that in the event that leave to appeal is granted that the applicant
will in terms of section
19(b) of the Supreme Court Act 10 of 2013
request the court designated to hear the appeal to receive further
evidence. As set out
in the affidavit.
[3] The grounds and reasons on which I
found against the applicant are set out in my judgment. The test to
be applied in an application
for leave to appeal is not whether my
reasons for such judgment are wrong or correct the test has always
been whether on the facts
another court would come to a different
conclusion.
[4] The case law to which I have been
directed by both counsel in this matter interpret section 12(1)(b)
and (c) as well as section
8(g) according to the facts of each case.
It is fair to conclude that each case must be adjudicated on its own
facts and surrounding
circumstances and having said so it is perhaps
wise to repeat the words of Van den Heever J in Borchers v Kaehne
1933 SWA 105 at
108 when the following was stated:
“Sequestration is an
extraordinary process in execution – if it can at all be
appropriately regarded as such –
and each creditor is presumed
to be the best judge of what is to his benefit.”
[5] Although I am not persuaded that my
findings in this matter were in any respect a product of faulty
reasoning I am alive to
the novel issues raised by the applicant of
seeking leave to tender new evidence at the appeal stage. I
accordingly take the view
that it is in the interest of justice to
grant the application for leave to appeal.
ORDER
[6]
6.1 Leave to appeal to be Full Bench of
the Gauteng Local Division of the High Court is hereby granted.
6.2 Costs of this application shall be
costs in the appeal.
DATED at JOHANNESBURG on this 28th
day of MAY 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING 7th MAY 2015
DATE OF JUDGMENT 28th MAY 2015
FOR APPLICANT ADV A M VAN WYK
INSTRUCTED BY MESSRS DRYER &
NIEUWOUDT
56 End Road
Linden Extension
Randburg
Tel: (011) 782 3370
Fax: (011) 782 4663
Ref: J L Dreyer/DB/
FOR RESPONDENT ADV C HUMPHRIES
INSTRUCTED BY MESSRS TKI SCOTT
ATTORNEYS
548 Panther Road
Boskruin Extension 10
Randburg
Tel: (011) 793 1870/791 7533
Fax: (011) 791 - 4544