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[2010] ZAWCHC 497
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Shaw NO and Others v O'Shea NO and Another (11132/2009, 22736/2009, 10336/2010) [2010] ZAWCHC 497 (15 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
11132/2009, 22736/2009, 10336/2010
DATE: 15
OCTOBER 2010
In the
matter between:
BRYAN
NEVILLE SHAW N.O.
…...................................................
1
st
Applicant
DUDLEY
BERNARD
DAVIDS
N.O.
…...........................................
2
nd
Applicant
CHRISTOPHER
PETER VAN ZYL N.O.
…....................................
3
rd
Applicant
BRIAN
NEVILLE SHAW N.O.
…....................................................
4
th
Applicant
HASSEN
KAJIE N.O.
….................................................................
5
th
Applicant
and
PATRICK
KERRY O'SHEA N.O.
…...........................................
1
st
Respondent
SIOBHAN
LEE O'SHEA N.O.
…...............................................
2
nd
Respondent
JUDGMENT
Application
for Leave to Appeal
JACOBS.
AJ
:
The third
intervening applicant, was granted leave to intervene as an applicant
in the sequestration application under case number
11132/2009.
1.
The provisional order for sequestration granted on 11 November 2009
was made final.
2. The
third intervening applicant, was granted leave to intervene as an
applicant in the sequestration application under case number
11132/2009.
3. The
application costs and the costs of the third intervening applicant
are ordered to be costs in the sequestration.
Mr
Sholto-Douqlas
SC
.
who appeared on behalf of the respondent, the applicant in the
present application for leave to appeal, raised various arguments
in
addition to the grounds raised in the application for leave to
appeal. The application for leave to appeal was opposed by Mr
Manca
SC
and Mr Sievers, acting on behalf of the applicants and the third
intervening applicant respectively.
I
am of the view, having had the benefit of argument from counsel, that
the present matter involves, on the crucial issues which
underpin the
matter, matters of interpretation and that another Court might come
to a different conclusion on those issues. In
this regard the
maxim
tot homines tot sententiae
is
apposite and one should certainly not be dogmatic about
In
the application for leave to appeal dated 9 September 2010 and filed
on 10 September 2010, reference was also made to grounds
of appeal in
paragraph (b)(i) and (b)(ii) relating to the first and second
applications to intervene. At the hearing of this matter
and during
argument relating to the application for leave to appeal, Mr
Sholto-Douqlas
SC
indicated that as he was not involved in the matter previously and
was simply briefed to argue the application for leave to appeal,
that
he was not aware that the first and second application for leave to
intervene, was neither argued nor was any relief sought
at the
previous hearing and that his client no longer relies on the grounds
of appeal set forth in paragraph (b)(i) and (b)(ii)
of the
application for leave to appeal.
In the
circumstances, I am of the view that leave to appeal should be
granted to the Supreme Court of Appeal in view of the legal
issues
raised in the matter and that the costs should be costs in the
appeal. Accordingly the following order is granted:
1. That
leave to appeal is granted to the Supreme Court of Appeal.
2. That
costs should be costs in the appeal.
JACOBS,
AJ