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[2016] ZAGPPHC 72
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Burmeister and Another v Spitskop Village Properties and Others (Commissioner for the South African Revenue Service Intervening) (76408/2013) [2016] ZAGPPHC 72 (22 January 2016)
REPUBLIC OF SOUTH AFRICA
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
22/01/2016
CASE NO: 76408/2013
Not reportable
Not of interest to
other Judges
In the matter between:
DANIEL FRIEDERICH
BURMEISTER
First
Applicant
LESEDING DEVELOPMENT
LIMITED
Second
Applicant
and
SPITSKOP VILLAGE
PROPERTIES LTD
First
Respondent
JOHAN FRANCOIS
ENGELBRECHT N.O.
Second
Respondent
COMMISIONER FOR THE SOUTH
AFRICAN REVENUE
SERVICE
Intervening
Party
JUDGMENT - Leave to
appeal
MAKGOKA, J
[1] This is an
application for leave to appeal against the judgment of this court
dismissing the applicants' application to order
business rescue
proceedings in respect of the first respondent. The application is
opposed, on the one hand, by the first and second
respondents, and
the intervening party, on the other - the same parties who opposed
the main application.
[2] The common law test
in an application for leave to appeal has always been whether there
are reasonable prospects that another
court, given the same set of
facts, might arrive to a different conclusion. That test has been
codified by s 17 of the Superior
Court Act 10 of 2013, in terms of
which leave to appeal may only be given where a judge is of the
opinion that the appeal
would
have reasonable prospects of
success. (My underlining for emphasis).
[3] I have had careful
and dispassionate regard to the applicants' grounds of appeal, which
amount to no more than a regurgitation
of the arguments advanced in
the main application. Each of the grounds has been dealt with fully
in the judgment, and it would
serve no purpose to repeat what is
stated there. The applicants' insurmountable obstacles include, among
others, the views of the
main creditor, SARS, who opposed the
application; the fact that both this court and the Supreme Court of
Appeal have found that
the substratum of the first respondent had
disappeared; and the paucity of the information as to the reasons why
the first respondent
landed in financial difficulty; the lack of
sufficient particularity as to the business rescue plan.
[4] For all the above
considerations, I am not persuaded that any other court would come to
a different conclusion. The application
falls to fail, and in the
result the following order is made:
1.
The application is dismissed with costs, such
costs to include the costs of two counsel where such counsel were
employed, to be
paid by the applicants jointly and severally, the one
paying the other to be absolved.
___________________
T.M. Makgoka
Judge of the High Court
Heard: 19 January 2016
Judgment delivered: 22
January 2016
Appearances:
For the Applicants: Adv.
L.K. Van der Merwe
Instructed by: Cawood
Attorneys, Pretoria
For the First and Second
Respondents: Adv. J Vorster
Instructed by: Leahy &
Van Niekerk Inc., Pretoria
For the Intervening
Party: Adv. H.G.A Snyman SC Adv. C. Naude