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[2017] ZAGPPHC 957
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Wonderpark Handelaars CC v Kanonkop Stainless (Pty) Limited and Another (70923/2015) [2017] ZAGPPHC 957 (16 March 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION. PRETORIA)
(1) REPORTABLE:
YES
/NO.
(2) OF INTEREST TO OTHER JUDGES:
YES
/NO.
(3) REVISED.
CASE NO: 70923/2015
DATE:16/3/2017
IN THE MATTER BETWEEN:
WONDERPARK HANDELAARS CC
Applicant
And
KANONKOP STAINLESS (PTY) LIMITED
1ST
Respondent
ENGEN PETROLEUM
LIMITED 2ND
Respondent
JUDGMENT
(in the application for leave to appeal)
KOLLAPEN J:
1. This is an application
for leave to appeal against the whole of the order and judgment of
this Court of the 15th of December
2016. The grounds are fully set
out in the application for leave to appeal.
2. The crisp issue for
determination by this Court in the main application was whether the
first respondent's conduct in relation
to the negotiations and/or
discussions between the parties in relation to the lease agreement
that existed between them, was unconstitutional
to the extent that it
precluded it from relying on Clause 19.4 of the lease agreement
between the parties under circumstances where
it was not in dispute
that the applicant had not effected a written renewal of the lease.
3. In the judgment of the
Court it had been found that the parties had at most committed to a
long-term relationship whose duration
was not clear or not agreed
upon. In addition it concluded that the second respondent was an
important role player in the structure
of the relationship between
the parties and its stance and views were relevant in relation to how
the parties' future relationship
would unfold. The Court accordingly
had found that it could not be said that there was a common
understanding to renew the lease
nor could it be said that the
conduct of the respondent could be characterised as being
unconstitutional precluding it from relying
on clause 19.4 of the
lease agreement.
4. Section 17 of the
Superior Courts Act (Act 10 of 2013), states the test in relation to
leave to appeal as follows:
"17 Leave to
appeal
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;"
5. There is no doubt that
the legal issue raised is an important one in relation to the
development of the law of contract and how
such development is
impacted upon by the provisions and values of the Constitution.
6. On the other hand the
factual matrix and factual findings I have made do not lend
themselves to the determination of the legal
issue in favour of the
appellant. While in law the renewal of the lease was a matter
strictly between the parties, in truth and
reality it was a matter
involving the need to reach some suitable arrangement with the second
respondent and to that extent I was
not of the view that the
prevailing circumstances and the conduct of the parties supported the
conclusion that there was in fact
a renewal of the lease that came
about.
7. Accordingly in my view
there is no compelling reason why the appeal should be heard. In
addition, it cannot be said that the
appeal would have a reasonable
prospect of success.
8. Accordingly, the
application for leave to appeal must fail.
ORDER
9. In the circumstances I
would make the following order:
• The application for
leave to appeal is dismissed with costs, including the costs of
senior counsel.
N KOLLAPEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
HEARD ON: 09 March 2017
APPEARANCES
FOR THE APPLICANT: Adv. J P VORSTER SC
INSTRUCTED BY: Van Zyl le Roux Inc. (ref.: A van
Velden/ADIMAT72785)
FOR THE 1st RESPONDENT: Adv. J G BERGENTHUIN SC
INSTRUCTED BY: Christo Coetzee Attorneys (C Coetzee/wr/SK0010)