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[2010] ZAGPPHC 68
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Atkin and Another v Botes (12256/2010) [2010] ZAGPPHC 68 (26 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG,
PRETORIA)
CASE
NO: 12256/2010
DATE:
26/07/2010
In
the
matter between:
MARK
JULIAN ATKIN
FIRST
APPLICANT
STUART
VAN DER MERWE INC
SECOND
APPLICANT
and
PETRUS
JACOBUS BOTES
RESPONDENT
JUDGMENT
(LEAVE TO APPEAL)
MAKGOKA
.
J:
[1]
This
is an application for leave to appeal against the whole of my
judgment and order ancillary thereto, in terms of ! confirmed
an
anti-dissipation order granted by Van der Byl AJ.
[2]
The
test applicable at this stage is trite and established, namely
whether another court, given the same set of facts, might arrive
to a
different conclusion. It is not about the correctness or otherwise of
my judgment.
[3]
I have had careful regard to my judgment, the notice of application
and the grounds set out therein, as well as oral submissions
by the
respective counsel.
[4]
Mr.
Van
Coder,
for
the respondent, submitted as a preliminary point, that the order is
not appealable, such being an interim order. I do not agree
The order
is. in my view, definitive of the issue between the parties.
[6]
I
am
also of the view that another court might arrive to a different
conclusion to mine Leave to appeal should therefore
he
granted
Among
the
issues
argued in this application is whether, for the purposes of an anti
dissipation order, legal pro
ceedings
should be pending at the time the application is launched, as opposed
to anticipated legal proceedings. In that regard,
both counsel were
in agreement that should I be disposed to grant leave, such leave
should be to the the Supreme Court of Appeal.
[7]
Mr
Mullen
for
the
first applicant, undertook on behalf of the first applicant, that
should leave to appeal be granted, the proceeds from the sale
of the
immovable property shall remain in trust as per the confirmed order
of Van de Byl AJ.
[8]
I
therefore
make the following order:
1.
The
first applicant is granted leave to appeal to the Supreme Court of
Appeal.
2.
The
costs of this application are to be costs in the appeal.
3.
Pending
the determination of the appeal, the proceeds from the sale of the
immovable property shall remain in trust as more fully
set out in the
order of Van der Byl AJ and confirmed by this Court.
T
M MAKGOKA
JUDGE
OF THE HIGH COURT