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[2017] ZANCHC 1
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Abrinah 7804 (Pty) Ltd v Kapa Koni Investment CC (717/2016) [2017] ZANCHC 1 (13 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 717/2016
Heard
on: 08/12/2016
Delivered
on: 13/01/2017
In
the matter between:
ABRI
NAH 7804 (PTY)
LTD
APPLICANT
And
KAPA
KONI
INVESTMENT
CC
RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
J
[1]
This is an application for leave to appeal, to the Full Bench
of the Northern Cape Division,
alternatively
the Supreme
Court of Appeal, against the whole of my judgment delivered on 14
October 2016, with the following order:
1.1
That the agreement between the Kapa Koni Investment s CC and
Abrinah 7804 (Pty) Ltd concluded on 04 August 20 15 is still valid;
1.2
That the purported cancellation of the agreement by Abrinah 7804
(Pty) Ltd on 07 March 2016 was wrongful;
and
1.3
That Abrinah 7804 (Pty) Ltd pays the costs of this application on the
party and party scale.
[2]
The applicant's main argument revolved around the
submission that I erred in not find ing
that the
agreement between the patties was null and void as at 03 February
2016 and that it was not possible to extend the period
within which
the suspensive condition had not been fulfilled. Adv Van Tonder,
appearing for the applicant, sought to convince me
further that I
erred in the interpretation of the contents of the letter dated 15
February 2016 and therefore that another Court
may construe it
differently.
[3]
Para 17 of the main judgment disposes of the submissions by Adv Van
Tonder fully. Counsel has not dealt with the purpose of
this l etter
both in his oral and written submissions. A point correctly taken by
Adv Coetzee SC is that if the applicant regarded
the agreement to be
void there would not have been any need to write the letter in
question and neither would the necessity to
cancel the contract have
arisen because there would have been nothing to cancel. Counsel
expounded, correctly so in my view, that
in any event Clause 2 is not
a suspensive condition as submitted by Adv Van Tonder.
[4]
The applicant had afforded Kapa Koni Investment CC 14 days to comply
with Clause 2 of the agreement which it did. Having heard
counsel 's
submissions on both sides, it remains my view that the applicant has
no reasonable prospects of success on appeal. See
s 17 of the
Superior Courts act, 10 of 2013.
[5]
In the result the following order is made:
The
application
for leave to appeal is dismissed with
costs.
___________________
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the applicant:
Adv AG Van Tonder
Instructed
by:
Van de Wall Inc
For
the respondent:
Ad v WJ Coetzee SC
Instructed
by:
Towell Groenewaldt Attorneys