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[2010] ZAWCHC 337
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Ponelat v Shrepfer (17318/2009) [2010] ZAWCHC 337 (18 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
17318/2009
DATE
:
18
OCTOBER 2010
In
the matter between:
HEINZ
GUNTHER PONELAT
….............................................................
Applicant
and
ERICA
SCHREPFER
….....................................................................
Respondent
JUDGMENT
(Application
for Leave to Appeal)
MOOSA.
J
:
This
is an application for leave to appeal against the judgment of this
Court delivered in this matter on 28 Augustus 2010 in
terms of which
the Court found: firstly, that an universal partnership came into
assistance between the parties on the basis
of a tacit agreement;
secondly, that the partnership was deemed to have commenced on 4
March 1998 and terminated on 1 April 2005;
and thirdly, that the
respondent had a 35% share in such partnership and the applicant had
a 65% share in such partnership.
The
applicant appealed on the grounds that the evidence established
nothing more than a co-habitation agreement between the parties
and
no universal partnership can be inferred from the evidence
In
addition to the claim for an universal partnership, the respondent
claimed damages for breach of promise. I dismissed such
claim. No
counter-appeal was lodged by the respondent against my finding in
respect of the claim of universal partnership and/or
the ratio and
in respect of the breach of promise to marry.
The
test which I have to apply is whether another court would come to a
different conclusion to which this court had come to.
To put it in
another manner, whether there are reasonable prospects of success on
appeal.
Adv
Jooste
.
who appeared on behalf of the applicant, submitted that the decision
in
Muhlmann
V MOhlmann
1984(3)
SA 102 (AD) may have been superceded by the constitutional
imperative and the present day
mores
of
society. The Supreme Court of Appeal may come to a different finding
on the law and fact on the issues decided by me.
Adv
Niqrini
on
behalf of the respondent, on the other hand, submitted there were no
prospects of success on appeal both on the facts and the
law.
After
careful consideration, I am not convinced that another court may not
come to a different conclusion on the facts and the
law than the
ones I came to in this matter. I therefore conclude that there are
reasonable prospects of success on appeal.
The
further matter I am required to decide is whether the matter should
be heard by the full bench of this division or the Supreme
Court of
Appeal. Adv
Jooste
contended
that the Supreme Court of Appeal would be the appropriate forum to
settle the issues for the following reasons:
"(a)
It is desirable that the Supreme Court of Appeal decisively and in
view of the Constitutional imperative and the lapse
of time since
the reporting of the judgment in
Muhlmann
(supra)
against the background of present day
bone
mores
and
coming into operation of the Constitution, revisit and decisively
consider the cause of action premised on a tacit universal
partnership;
(b)
The Supreme Court of Appeal, subject to those matters for which
jurisdiction has been reserved for the Constitutional Court
is the
final Court of Appeal and can decisively adjudicate upon the issues
raised in this appeal, given the importance of this
cause of action,
taking into account that this particular cause of action is also a
cause of action that would be available in
same gender
relationships."
Adv
Niqrini
had
no objection to such referral. In the circumstances, the applicant
IS
GRANTED LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL
in
this matter and costs of this application shall be costs in the
cause.
MOOSA, J
/IM
/