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[2016] ZAGPPHC 974
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Nel v Davis NO and Another (50948/2011) [2016] ZAGPPHC 974 (31 October 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Not reportable
Not of interest to
other Judges
CASE
NO: 50948/2011
31/10/2016
In
the matter between:
ANITA
HELENA NEL
Applicant
and
ADV.
NORMAN DAVIS SC
N.0.
First
Respondent
ANDRIES
DE
BRUYN
Second
Respondent
JUDGMENT
(Leave to appeal)
MAKGOKA,
J
[1]
This is an application for leave to appeal against the judgment and
order of this Court handed down on 20 April 2016. In terms
of the
order of the judgment. the applicant's application seeking an order
that that she is entitled to the value of a partnership
property as
at 21 April 2006 before the property net proceeds are shared on a 50%
basis, was dismissed with costs.
[2]
Mr
Davies,
counsel for the applicant, submitted that another
could come to a different conclusion, as, according to him, the court
did not
take into consideration that the parties had expressly
provided for the outcome contended for by the applicant, by using the
words
'net proceedings'. I do not agree. The parties did not agree
that when considering the 'net proceeds' the second respondent's
non-monetary
contributions would be ignored. In the light thereof,
the common law position with regard to the dissolution of
partnerships applies,
which is what the court premised its judgment
on. This aspect has been exhaustively dealt with in the judgment.
[3]
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(1) (a) (i) and
(ii) 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 prospect of success, or that there is some compelling
reason why the appeal should be heard.
(my
underlining for emphasis)
[4]
It is clear that by the use of 'would' in the s 17, the legislature
intended a heightened threshold than the common law one.
Given what
has been considered in the main judgment, I conclude that there
appeal would not have a reasonable prospect of success.
There is no
compelling reason why the appeal should be heard.
[5]
The sum total of the above is that the application for leave to
appeal is unmeritorious and falls to fail.
[6]
The following order is made:
The
application for leave to appeal is dismissed with costs.
_______________________
T.M.
Makgoka
Judge
of the High Court
Date
heard: 28 October 2016
Date
of judgment: 31 October 2016
For
the Applicant: Adv. SW Davies
Instructed by:
Dempster McKinnon
Attorneys
Barnard & Patel
Attorneys, Pretoria
For
the Second Respondent: Adv. PJ Vermeulen
Instructed by: JPA
Venter Attorneys, Pretoria
No
appearance for the First Respondent