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2023
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[2023] ZAFSHC 509
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Terblanche and Another v Oosthuizen (3670/2022) [2023] ZAFSHC 509 (29 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number: 3670/2022
In
the matter between:
ELIZABETH
SOPHIA TERBLANCHE
1
st
Applicant
THE
TRUSTEES FOR THE TIME BEING OF THE
2
nd
Applicant
BLOOMPLAATS
TRUST, IT28/95
And
JACOBUS
DU PLESSIS OOSTHUIZEN
Respondent
HEARD
ON:
This
matter was disposed of without the hearing of oral arguments as
provided for in
s 19
(a)
of
the
Superior
Courts Act 10 of 2013
.
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
29
DECEMBER 2023
[1]
The first applicant seeks leave to appeal to the full bench of this
division against the judgment
and order I handed down on 4 July 2023
in terms of which I dismissed with costs the applicants’
application to hold the respondent
in contempt of the court interdict
granted on 18 August 2022. In terms of the said court interdict, the
respondent was ordered
to refrain, pending the finalisation of the
action involving the parties from utilising the route between farm
Gedagtenis and the
S74
road.
[2]
In the grounds of appeal, the first applicant essentially asserts
that this court erred in its
finding that:
2.1.
the first applicant had failed to prove that the respondent was in
contempt of the court;
2.2.
the applicant was disentitled to the interdict she had sought; and
2.3.
the respondent established genuine disputes of fact worthy to be
accepted for the determination of the dispute
between the parties.
[3]
The basis of the first applicant’s contention is that on the
papers, the respondent had
not placed in dispute the existence of the
court order and its validity. In fact, he had admitted that on the
day in question he
exited the Gedagtenis and travelled for 80 meters
of that route. The respondent also admitted that:
‘
a.
He stopped closed to the first applicant with his bakkie;
b.
She did not move away and he used his bakkie hooter;
c.
The first applicant did not move away;
d.
The first applicant’s back was facing his vehicle;
e.
She backed up against his vehicle;
f.
She stood against his vehicle; and
g.
The respondent slowly at a crawling speed moved slightly forward, the
first applicant walked
forward and fell down and started screaming.”
[4]
It is thus the first applicant’s case that another court would
find that she had proved
the respondent’s contempt beyond a
reasonable doubt.
[5]
The principles governing
applications for leave to appeal are trite and have been extensively
referred to by the parties in their
respective heads of argument, I
therefore deem it unnecessary to rehash them here except to highlight
that
in
terms of
section 17(1)(a)
of the
Superior
Courts Act 10 of 2013
, I am enjoined to grant leave to appeal
only where I am certain that
there
are reasonable prospects of the appeal succeeding, there is in fact a
reasonable possibility that another court would come
to a different
conclusion.
[6]
As
correctly pointed out by the respondent in his opposition, he only
admitted to being on the side of his own his farm cutting
trees and
in order to access the trees he had to be on the other side of his
property which is by the route. At no stage did he
travel on that
route. Furthermore, nowhere
in
the court interdict is it stated that the respondent was prohibited
from accessing the portion of his own property situated on
that
route. He was merely prohibited from utilizing that route to travel
between farm Gedagtenis and the
S74
road.
[7]
Assault involves the intentional conduct which results in another
person sustaining an injury
to their bodily integrity. (
Snyman
Criminal Law
, 5
th
Edition at page 455). None of the
factors listed by the first applicant in her grounds of appeal
constitute an admission to assault
in the respondent’s
answering affidavit.
[8]
I have dispassionately considered all the grounds of appeal including
the heads of argument. I
am of the view that I have adequately dealt
with all the issues raised in the grounds of appeal in my judgment
and I am not persuaded
that they warrant a hearing of an appeal.
There are no reasonable prospects of this appeal succeeding and there
are also no compelling
reasons why the appeal should be heard.
[9]
In the result, I make the following order:
1.
The application for leave to appeal is dismissed
with costs.
N
S DANISO, J
For
the applicants:
Adv.
N Jagga
Kotze
Louw Swanepoel Inc.
C/O
McIntyre & van der Post
Email:
hanno@mcintrye.co.za
BLOEMFONTEIN
For
the respondent
Adv.
J Els
Phatsoane
Henney Attorneys
japiek@phinc,co.za
BLOEMFONTEIN