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2023
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[2023] ZAFSHC 164
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Ferreira Equestrian Centre (Pty) Ltd v Spies and Another - Leave for Appeal (400/2023) [2023] ZAFSHC 164 (15 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 15h00 on 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
.