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2020
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[2020] ZAGPJHC 262
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Kader v Swartz and Another (2015/08456) [2020] ZAGPJHC 262 (19 October 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2015/08456
In
the matter between:
KADER:
HEIDI JOY
Applicant
And
SWARTZ:
MERVYN ISRAEL N.O.
First
Respondent
KADER:
STUART WAYNE
Second
Respondent
JUDGMENT ON LEAVE TO APPEAL
FOULKES-JONES
AJ
1.
I handed down judgment in this matter in December 2019. I gave
various orders against the First Respondent and ordered
him to pay
the costs of the application.
2.
First Respondent now seeks leave to appeal against my judgment,
citing sections 17(1), (2)(a) and (6).
3.
No doubt if one reads those sections of the Superior Courts Act No.
10 of 2013 (with Uniform Rule 49) I would have to refer the
matter to
the Full Court of the Gauteng Local Division. The appeal does
not involve a question of law of importance, is not
of general
application and does not involve differences of opinion (section
17(1), (2)(a) and (6)).
4.
But I could in terms of section 17(1)(a) only grant leave to appeal
if I am of the opinion that the appeal
would
have a reasonable
prospect of success. (My underlining).
5.
I have been referred to the judgment of Bertelsmann J in the matter
of
The Mont Chevaux Trust v Tina Goosen & 18 Others
2014
JDR 2325 (LCC) at paragraph (b) where he held as follows:
“
It is clear that the
threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The
former test whether leave
to appeal should be granted was a reasonable prospect that another
court might come to a different conclusion
… The use of the
word “would” in the new statute that another court will
differ from the court whose judgment
is sought to be appealed
against.”
6.
I am thus obliged to determine whether another Court would (not
might) come to a different conclusion. Notwithstanding
the able
argument of Mr Badenhorst SC, I am not convinced that another Court
would
come to a conclusion other than that which I have made.
7.
I cannot therefore grant the First Respondent leave to appeal.
I make the following order:
7.1. The application for leave to
appeal is dismissed with costs.
K I FOULKES-JONES
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT,
JOHANNESBURG
Electronically submitted
Delivered:
This judgement is handed down electronically by circulation to the
Parties/their legal representatives by email.
The date for
hand-down is deemed to be 19 October 2020.
Date
of hearing: 23 July 2020
Date
of judgment: 19 October 2020
Appearances:
Sian
Richardson Attorneys: Attorneys for the Applicant
Counsel
for the Applicant: Adv. W Davel
Keith
H Lang Attorneys: Attorneys for the 1
st
Respondent
Counsel
for the 1
st
Respondent: Adv. S M Katzew