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[2019] ZAGPPHC 261
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Stander NO and Others v Agridelight Holdings (Pty) Ltd (71862/2016) [2019] ZAGPPHC 261 (27 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 71862/2016
27/6/2019
C
L STANDER NO
FIRST APPLICANT
G
L S DE WET NO
SECOND APPLICANT
S
T KEKANA NO
THIRD APPLICANT
L
M MALATSE-TEFFO NO
FOURTH APPLICANT
and
AGRIDELIGHT
HOLDINGS (PTY) LTD
RESPONDENT
JUDGMENT
KUBUSHI
J,
INTRODUCTION
[1]
This is an opposed application for leave
to appeal, to the Full Court of this Division, against the orders and
judgment I handed
down on 27 November 2018. However, in oral argument
in court, the applicants' counsel moved for an order that leave to
appeal be
granted directly to the Supreme Court of Appeal, which is
opposed. For convenience I shall refer herein to the parties as they
were referred to in the court a
quo.
[2]
The application for leave to appeal is
in terms of section 17 (1)
(a)
(i)
of the Superior Courts Act 10 of 2013 ("the Act") which
provides that leave to appeal may only be given where the
judge or
judges concerned are of the opinion that the appeal would have a
reasonable prospect of success.
[3]
From case law dealing with the
interpretation of the section as regards the test employed for
determining whether leave to appeal
should be granted, it is evident
that the threshold has been raised. The use of the word "would"
in the section has been
held to denote a measure of certainty that
another court will differ from the court whose judgment is sought to
be appealed against.
[4]
In terms of the section, that there are
reasonable prospect of success, should be in the opinion of the
judge(s) whose judgment
is sought to be appealed. The applicant in
the application for leave to appeal must, as a result, convince the
judge(s) involved
that there is a measure of certainty that another
court will differ from the court whose judgment is sought to be
appealed.
[5]
My judgment (including my findings and
reasons therefor), which the plaintiffs seek to appeal, is
comprehensive, and, I do not think
it is necessary to delve into it
again. As it is, application for leave to appeal is not rehearse of
the trial.
[6]
In the judgment, I found, in the main,
that the agreement which was the subject matter of the dispute
between the parties was null
and void for want of compliance with
section 2
(1) of the
Alienation of Land Act 68 of 1981
, which
required a written agreement signed by the parties thereto or their
agents acting on written authority. Such finding was
on the basis
that the agreement on which the plaintiffs' sought to rely for their
claim was not signed by the parties thereto as
joint liquidators or
by their agents with written authorisation, in that, the agreement
was signed only by two of the four liquidators
(the first and second
plaintiffs) and there was no written authority from the other two
liquidators (the third and fourth plaintiffs).
[7]
The plaintiffs in their application for
leave to appeal are challenging my findings on the ground that I
erred in finding that there
was no joint action on the part of the
liquidators when the first and second plaintiffs signed the
acceptance of the offer made
by the defendant without written
authorisation from the third and fourth plaintiffs. According to the
plaintiffs, the first and
second plaintiffs signed the offer on
behalf of all the joint liquidators as at the time of signature the
first and second plaintiffs
were properly authorised to accept the
offer by the third and fourth plaintiffs. There was no need for a
written authorisation
as the plaintiffs acted as the natural persons
representing a corporate entity, namely, GS Poultry, and that GS
Poultry was not
able to act other than through natural persons, so
they argued.
[8]
Having considered the grounds of appeal
raised by the plaintiffs in this application for leave to appeal and
the arguments for and
against such application by all the parties I
am of the opinion that there are reasonable prospects of success on
appeal, particularly
on the issue of whether the first and second
plaintiffs had to be authorised in writing by the third and fourth
respondent.
[9]
I do not think that this matter
qualifies for direct referral to the Supreme Court of Appeal. Section
17 (6)
(a)
of
the Act provides for referral to the Supreme Court of Appeal in
circumstances where: (i) the decision to be appealed involves
a
question of law of importance, whether because of its general
application or otherwise, or in respect of which a decision of
the
Supreme Court of Appeal is required to resolve differences of
opinion; (ii) the administration of justice either generally
or in
the particular case, requires consideration by the Supreme Court of
Appeal of the decision. There are no such circumstances
in the
present matter. There are no novel or complex issues of law that
requires such referral. The facts of the matter are mostly
common
cause and require application of well-known principles of the law.
Leave to appeal should be granted to the Full Court of
this Division.
[10] I make the
following order.
1.
The application for leave to appeal is
granted.
2.
Leave to appeal to the Full Court of
this Division is granted against the orders and judgment handed down
in this matter on 27 November
2018.
3.
Costs are costs in the appeal.
E. M. KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for Applicants
: ADV. M.P Van Der Merwe
Instructed
by
: Leahy
Attorneys Inc.
Counsel
for Respondent
: ADV. J.P Vaster
Instructed
by
: Weavind & Weavind Inc.
Date
of Heard
: 14 June 2019
Date
of Judgment
: 27 June 2019