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[2017] ZANCHC 3
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Knoetze v Knoetze N.O. and Others (1603/2015) [2017] ZANCHC 3 (13 January 2017)
1
T
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1603/2015
Heard
on: 28/11/2016
Delivered
on: 13/01/2017
In
the matter between:
HENRY
JOHAN NES
KNOETZE
APPLICANT
And
HENRY CASPARUS KNOETZE N.O.
1
st
RESPONDENT
HEN RY CASPARUS
KNOETZE
2
nd
RESPONDENT
MAGDALENA ELIZABETH
KNOETZE N.O.
3
rd
RESPONDENT
MAG DALENA ELIZABETH
KNOETZE
4
th
RESPONDENT
HENDRICK CORNELIUS LE ROUX
N.O
5
th
RESPONDENT
HENDRICK CORNELI U S LE ROUX
6
th
RESPONDENT
ESTELLE ELIZABETH
SWART
7
th
RESONDENT
MARTHA MAGDALENA
KNOETZE
8
th
RESPONDENT
MASTER OF THE HIGH COURT,
KIMBERLEY
9
th
RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
J
[1]
The applicant, Henry Johannes Knoetze, seeks leave to appeal to the
Fu ll Bench of the Northern Cape Division alternatively
to the
Supreme Court of Appeal against the whole of my judgment and order
granted on 24 June 2016 in which the following
orders were
made:
1.1
The exception relating to the plaintiff s first claim is upheld and
the claim is dismissed;
1.2
The exception in relation to the plaintiff's second claim (consisting
of exception 2 and 3) is upheld;
1.3
The plaintiff is afforded the oppo1tunity to amend his Particulars of
Claim (the second claim), i f so advised, within 20 days
of this
order, failing which the defendant i s granted leave to apply on the
same papers, suitably supplemented, for dismissal
of the action; and
1
.4 The plaintiff pay the costs of the exception application which
includes the costs associated with the submission of the
supplementary
note.
[2]
The grounds upon which the applicant relies
comprise about 12 pages. The applicant
has
also listed 14 findings I made which he alleges I erred and submitted
that there are therefore reasonable prospects of success
on appeal.
Listing and dealing with all of them will render this judgment
unnecessarily prolix. See
Songono
v
Minister of
Law and
Order
1996 (4) SA 384
(E)
at 385C - E.
[3]
The issues in the main case were really three exceptions raised by
the first to sixth respondents. I found that the allocation
("toekenning") of the farm to the applicant fell under
the
Alienation of Land Act, 68 of 1981
and accordingly upheld the
exception and dismissed the plaintiff's (applicant's) claim. This
finding is final and dispositive in
effect. It is my view that there
are nevertheless no reasonable prospects of success on appeal against
the finding.
[4]
In the second exception I found that the applicant lacked the
necessary
locus standi i
n
judicio
to act
for and on behalf of the trust. Adv Van der Walt SC, appearing for
the applicant, submitted that
'
an amendment will
serve
no purpose
as Mamosebo J has
already
determined
the position '.
This submission is, in
my view, without merit. It will assist the applicant to amend its
pleadings before proceeding with the main
action, if so advised. The
applicant has been afforded an opportunity to amend its pleadings
which renders the matter not final
in effect and hence not
appealable. See
Zweni v
Minister of
Law and Order
1993 (l) SA 523 (A) at
5321
and
536B-D.
[5]
I
therefore find that the applicant has no basis to
seek the relief sought as there are no reasonable prospects of
success on appeal.
See
s 17
of the
Superior Courts Act, 10 of 2013
.
[6]
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 D. J . Van der Walt SC
Instructed
by:
Duncan & Rothman Inc
For
the 1st - 5th respondents:
Adv S.C. Kirk-Cohen SC
Instructed
by:
Haarhoffs Inc.
For
the 6
th
respondent:
Adv
S. Grabler
Instructed
by:
Haarhoffs Inc