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[2022] ZAGPPHC 162
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Kingsgate Clothing (Pty) Ltd and Others v Edcon Limited (In Business Rescue) (57045/20) [2022] ZAGPPHC 162 (1 March 2022)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
1 March
2022
CASE NO: 57045/20
In
the matter between:
KINGSGATE
CLOTHING (PTY) LTD
FIRST APPLICANT
MAYTEX
LINEN CC
SECOND APPLICANT
SUPER
OCEAN TRADING CC
THIRD APPLICANT
MAYTEX
CARDING CC
FOURTH APPLICANT
CRUISE
COLLECTIONS CC
FIFTH APPLICANT
TWIN
CLOTHING MANUFACTURERS (PTY) LTD
SIXTH APPLICANT
APPAREL
INDUSTRIES (PTY) LTD
SEVENTH APPLICANT
CLEMATIS
TRADING (PTY) LTD
EIGHTH APPLICANT
and
EDCON
LIMITED (IN BUSINESS RESCUE)
FIRST RESPONDENT
PIERS
MARSDEN
SECOND RESPONDENT
(JOINT BUSINESS RESCUE
PRACTITIONER)
LANCE
SHAPIRO
THIRD RESPONDENT
(JOINT BUSINESS PRACTITIONER)
JUSTICE FDJ BRAND
FOURTH RESPONDENT
JUDGMENT
Van der Schyff J
Introduction
[1]
In
this judgment, the parties are referred to as in the main
application.
[2]
The
applicants filed an application for leave to appeal against the whole
of the judgment and order delivered on 15 November 2021.
The
applicants raised several grounds of appeal. I do not intend to deal
with these grounds herein, as I handed down a written judgment
wherein I provided the reasons for my findings. The grounds of appeal
generally constitute a re-arguing of matters argued when the
application was heard.
[3]
It
is trite that to succeed in an application for leave to appeal, 'more
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that the case
cannot be categorised as hopeless.'
[1]
[4]
The
applicants submit that a compelling reason exists for leave to appeal
to be granted to them. I disagree. The importance of context
in
interpreting documents, and the admissibility of contextual evidence
do not constitute a novel ground that needs to be pronounced
on by
the Supreme Court of Appeal.
[5]
After
considering the grounds of appeal, I am not of the opinion that a
reasonable probability exists that another court would or
could come
to a different conclusion.
[6]
Regarding costs, the application for leave to appeal was not complex.
The respondents did
not file heads of argument and the submissions
made by counsel was to the point and curt. Opposing the application
for leave to appeal
did not require the service of two counsel.
ORDER
In
the result, the following order is made:
1.
The
application for leave to appeal is dismissed with costs.
E van der Schyff
Judge of the High Court
Delivered: This judgement is
handed down electronically by uploading it to the electronic file of
this matter on Caselines. It will
be sent to the parties/their legal
representatives by email as a courtesy gesture. The date for
hand-down is deemed to be 1 March
2022.
Counsel
for the applicants:
Adv. O A Moosa SC
With:
Adv. A MacManus
Instructed
by:
Pather and Pather Attorneys Inc.
Counsel
for the 1
st
- 3rd respondents:
Adv. A E Sham
SC
With:
Adv. J.
E Smit
Instructed
by:
ENS Africa
Date
of the hearing:
21 February
2022
Date
of judgment:
1 March 2022
[1]
Smith
v S
2012
(1) SACR 567
(SCA) at para 7.