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[2010] ZAWCHC 159
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Cellular Insurance Managers (Pty) Ltd v Foshini Retail Group (Pty) Ltd (12262/07) [2010] ZAWCHC 159 (14 June 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE. HIGH COURT. CAPE TOWN)
CASE
NUMBER
:
12262/07
DATE
:
14
JUNE 2010
In the
matter between:
CELLULAR
INSURANCE MANAGERS
(PTY)
LIMITED
Applicant
and
FOSCHINI
RETAIL GROUP (PTY) LIMITED
Respondent
JUDGMENT
(Application
for Leave to Appeal)
FOURIE.J
:
Applicant
seeks leave to appeal against the whole of my judgment and orders
made on 11 May 2010. The application is opposed
It is
trite to succeed in an application of this nature, the applicant has
to show that it has a reasonable prospect of success
on appeal.
I have
considered the grounds of appeal relied upon by applicant, as well as
the submissions made on behalf of both parties. I am
not persuaded
that applicant has shown that there is a reasonable prospect that
another Court may come to a different conclusion
on the defence based
on Section 48 of the Short Term Insurance Act, No. 5 of 1998.
In regard
to the contractual claim on which I found in favour of the
respondent, I believe that I have come to the correct decision.
However, I cannot rule out the possibility that another court may
reasonably come to a different conclusion on this issue. In the
result I am persuaded that leave to appeal should be granted on this
issue. In my view, the matter merits the attention of the
Supreme
Court of Appeal.
In the
result the following order is made:
The
applicant is granted leave to appeal to the Supreme Court of Appeal
against my judgment and orders made on 11 May 2010, on
the grounds
set forth in paragraphs 8 to 23 of its notice of application for
leave to appeal dated 20 May 2010;
The
costs of the application for leave to appeal will be costs in the
appeal.
FOURIE.J