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2023
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[2023] ZAFSHC 167
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Ferreira Equestrian Centre (Pty) Ltd v Spies and Another (400/2023) [2023] ZAFSHC 167 (8 May 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. 400/2023
In
the matter between:
FERREIRA
EQUESTRIAN CENTRE (PTY) LTD
APPLICANT
and
CHRISTO
SPIES
1
ST
RESPONDENT
HARRISMITH
POLO
CLUB
2
ND
RESPONDENT
CORAM
:
GUSHA, AJ
APPLICATION
FOR LEAVE FOR APPEAL
DELIVERED
ON
:
This judgment was delivered electronically by circulation to the
parties’ representatives by way of email. The date and time
for
delivery is deemed to be at 16h00 on 08 MAY 2023.
JUDGMENT
[1]
This is an opposed application for leave to
appeal against the whole of the judgment and order granted by this
Honourable Court
on the 24
th
March 2023.
[2]
On the aforesaid date I gave an order in
favour of the applicant in the following terms;
1.
The 1
st
and or the 2
nd
Respondents are ordered to restore forthwith to the Applicant full
access to and undisturbed possession of the polo fields, Harrismith
by removing the fence that was erected on the 24 and 25 January 2023.
2.
The Respondents are ordered to pay the
costs of this application, on a party and party scale, jointly and
severally, the one paying,
the other to be absolved.
[3]
Their comprehensive grounds for leave to
appeal are set out in the application for leave to appeal. For
brevity’s sake, the
truncated grounds are that the court erred
in finding that;
3.1.
it was not the applicant’s case that it had sole and exclusive
use of the polo fields.
3.2.
it is inexplicable why the respondents would wait almost a year
before acting against the applicant’s
infringing actions.
3.3.
no genuine or
bona fide
dispute of fact existed.
3.4.
the applicant had
de facto
possession of the polo fields.
[4]
They consequently contend that there are
reasonable prospects of success that another court would find that :
4.1.
the respondents raised genuine and
bona fide
disputes
regarding the applicant’s possession of the polo fields.
4.2.
the applicant did not establish that it was in free and undisturbed
possession of the polo fields.
4.3.
the applicant has not made out a case for the granting of the
spoliation order; and
4.4.
the application ought to have been dismissed with costs.
[5]
Pursuant to receiving the notice of the application for leave to
appeal as well as
the notice to oppose, I requested the parties to
favour the Honourable Court with heads of argument. I am indebted to
them for
their comprehensive heads of argument. For that reason, I do
not intend repeating their submissions herein.
[6]
It is trite that leave to appeal may be given where the judge or
judges concerned
are of the opinion that the appeal would have a
reasonable prospect of success
[1]
.
[7]
Having had regard to the grounds advanced in support of the
application for leave
to appeal, the submissions by the parties, as
well as having reflected on the 24
th
March 2023 judgment,
It is my considered view that the respondents do not have reasonable
prospects of success.
[8]
Consequently, I make the following order:
1.
The application for leave to appeal must fail and is dismissed with
costs.
NG
GUSHA, AJ
On
behalf of the applicant
Adv. J. Els
Instructed
by:
EG Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of the respondent:
Adv. CD Pienaar
Instructed
by:
Lovius Block
BLOEMFONTEIN
[1]
Section
17 (1) (a)
Superior Courts Act 10 of 2013
.