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[2021] ZAGPPHC 181
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Du Preez v Van Rooyen (26156/2020; 14886/16) [2021] ZAGPPHC 181 (1 March 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO14886/ 16
CASE
NO: 26156/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
01
March 2021
In
the matter between:
SONJA
DU PREEZ (nee DE
KLERK)
APPLICANT
And
PETRUS
WILLEM VAN
ROOYEN
RESPONDENT
In
re:
STITCHED
FLAGS AND BANNERS CC (Reg No: […])
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the Parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on CaseLines by the Judge or his/her Secretary.
The date
of this judgment is deemed to be 01 March 2021.
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
COLLIS
J
INTRODUCTION
[1]
This is an application for leave to appeal against the judgment and
order I made on 18 January 2021. The full order of the court
reads as
follows:
1.1
“In terms of section 36(1)(d) of the Close Corporation Act 15%
membership interest of the respondent in the Close Corporation
Stitched Flags and Banners CC (Reg No: […]) be and is hereby
terminated, against payment by the applicant to the respondent
of the
amount of R 975 000 in terms of section 36(2)(c) of the Act.
1.2
Upon receipt of such payment mentioned in paragraph 74.1 the
respondent is directed to effect transfer of his 15% interest in
the
corporation to the applicant.
1.3
The applicant shall thereafter be the owner of 100% of the membership
interest of and in the Close Corporation aforesaid.
1.4
The respondent’s counterclaim is upheld with costs.”
[2]
The application is premised on the grounds as listed in the
Application for Leave to Appeal dated 28 January 2021.
LEGAL
PRINCIPLES
[3]
Section 17 of the Superior Court’s Act provides as follows:
[1]
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some
other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;
(b)
the decision sought to appeal does not fall within the ambit of
section 16(2)(a);
and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
[4]
As to the test to be applied by a court in considering an application
for leave to appeal, Bertelsmann J in The Mont Chevaux
Trust v Tina
Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the
following:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H.
The use of the word “would” in the new statute indicates
a measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against.’
[5]
‘In order to succeed, therefore, the appellant must convince
this Court on proper grounds that he has prospects of success
on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding. 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. There
must, in other word, be a sound, rational basis for the conclusion
that there are prospects of success on appeal.’
[2]
[6]
The applicant and the respondent on request by this court had filed
written Heads of Argument in order to facilitate the virtual
hearing
of the application for leave to appeal.
[7]
Having read the papers and having carefully heard counsel I come to
the conclusion that there is a reasonable prospect that
another court
would come to a different conclusion on the order of the court.
ORDER
[8]
Consequently I make the following order:
8.1
The application for leave to appeal is granted to the Full Court of
this Division, with costs
to be costs in the appeal.
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
APPEARANCES:
FOR
APPLICANT
(In
the leave to appeal application): ADV. B. G.
SAVVAS
INSTRUCTED
BY:
VENNE & MULLER INC
FOR
RESPONDENT
(In
the leave to appeal application): ADV. J. LUBBE
INSTRUCTED
BY: SCHULLER
HEERSCHOP PIENAAR
DATE
OF HEARING:
26 FEBRUARY 2021
DATE
OF JUDGMENT:
01 MARCH 2021
Judgment
electronically transmitted.
[1]
Act 10 of 2013
[2]
S v Smith
2012 (1) SACR 567
(SCA) at para 7