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[2018] ZANCHC 1
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Griekwaland Wes Korpratief Limited v Canon Garth Limited (1100/2015) [2018] ZANCHC 1 (26 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 1100/2015
Heard: 13/12/2017
Delivered: 26/01/2018
In the matter
between:
GRIEKWALAND -WES
KORPRATIEF LIMITED
APPLICANT/ DEFENDANT
And
CANON GARTH
LIMITED
RESPONDENT /PLAINTIFF
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
J
[1]
This is an application for leave to appeal to the Full Bench of this
Division by Griekwaland-Wes Korporatief Limited (GWK) against
the
whole of my judgment and order dated 18 August 2017.
[2]
The test in considering applications for leave to appeal is trite.
Section 17(1)(a)(i)
of the
Superior Courts Act, 10 of 2013
stipulates:
“
(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.”
[3]
The use of the word “would” in
s17
(1)(a)(i) raises the
threshold of the reasonableness of the prospects of success.
Previously all that was required for the applicant
was to demonstrate
that there was a reasonable prospect that another court might come to
a different conclusion.
[4]
Largely the grounds of appeal as set out on the Notice to appeal are
that my reasoning was erroneous in that I failed to take
into
consideration or give sufficient weight to Snyman’s explanation
of events. Adv Knoetze SC, for the applicant, contended
that:
4.1
I erred in my finding that the e-mails dated 06 and 07 March 2013,
where the parties are referred to
as “business partners”,
does not refer to the importation of peanuts as GWK was still
investigating that possibility;
4.2 The e-mail of 31 May 2013 by Mr
Snoek to Mr Snyman of GWK was a mere proposal. That there was no
reference
to any email preceding this email that confirmed that GWK
had agreed to pay Canon Garth Limited within 90 days from the bill of
lading;
4.3 The issue was whether GWK
had to pay within 90 days of the bill of lading. Since the responding
email
of 13 June 2013 by GWK did not agree to those terms there could
never have been an agreement as alleged by Canon Garth;
4.4
The reference to ‘back-to-back’ contracts was not raised
late but on the e-mail of 13 June
2013. It came to the fore in
response to the email of 31 May 2013.
[5]
Adv Basson, for the respondent, in his counter-argument contended
that the improbabilities in this case militate against GWK’s
averments. He urged that the application be dismissed.
[6]
In my view, having regard to the issues for consideration, there is
merit in the applicant’s submissions with regards
to the
interpretation of documentary evidence proving or disproving the
obligation by GWK to pay Canon Garth within the 90
day period
in order to conclude whether there was an agreement between the
parties or not. It follows that I am persuaded
that there
are reasonable prospects that the appeal might succeed. Leave to
appeal should be granted.
[7] In the result the following order
is made:
1.
The application for
leave to appeal to the Full Bench of the Northern Cape High Court is
upheld
.
2.
The costs of this
application are to be costs in the appeal.
_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION
For the applicant/defendant:
Adv B Knoetze SC
Van de Wall Incorporated
For
the respondent/plaintiff:
Adv JGW Basson
Haarhoffs Incorporated