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[2015] ZAGPPHC 450
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Laughland v Gouws and Another (36877 / 2014) [2015] ZAGPPHC 450 (9 July 2015)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
CASE NUMBER: 36877 /
2014
DATE: 09 JULY 2015
In the matter between:
DAVID SCOTT
LAUGHLAND
.......................................................................................
APPELLANT
And
MARTIN
GOUWS
.............................................................................................
FIRST
RESPONDENT
And
TERESA
GOUWS
...........................................................................................
SECOND
RESPODENT
JUDGMENT
MAVUNDLA, J.
[1] On the 7 October 2014 this Court
dismissed with costs the application for leave to appeal against its
judgment delivered on
3 October 2014. The Court did not furnish the
reasons for the said dismissal. The reasons are therefore set herein
below.
[2] It is trite that the consideration
in an application for leave to appeal is whether another Court would
come to a different
judgment or order as to that arrived at by the
Court a quo. It is not the reasons but the judgment or order which is
decisive in
this consideration.
[3] The judgment in respect of which
leave to appeal is sought, provided, inter alia, that: "[8] In
casu, the relevant farm
has since been leased to a third party who
has since moved into the premises. Counsel for the applicant conceded
that in such circumstances,
restoration of possession is impossible.
The applicant in respect of restoration of possession of the farm
must fail for that reason."...
"[11] I am of the view that the
applicant has not acquitted himself of the onus resting upon him to
prove that at the time
when he approached the court, he had any
possessory right which demanded any protection through mandament van
spolie. Consequently
his application stands to be dismissed with
costs." which indeed was dismissed with costs."
[4] Where the lessee has parted with
detention of the property allegedly despoiled, spoliation order in
such circumstances is incompetent;
vide Bank van Die Oranje Vrystaat
v Rossouw
1984 (2) SA 644
(CPA).
[5] In the matter of Beyers v Eleven
Judges of the Constitutional Court
[2002] ZACC 19
;
2002 (6) SA 630
(CC) at 635 H it
was held that giving of reasons by the court of final instance for
refusal of application for leave to appeal
was unnecessary and
undesirable. In the premises I deem it not necessary to traverse all
the points canvassed by the appellant.
It suffices to state that
granting leave to appeal, in my view, would be an exercise in
futility as there are no prospects that
the order granted would be
reversed.
[6] I therefore hand down the reasons
for the order granted against the first and second respondents.
N.M MAVUNDLA JUDGE OF THE HIGH COURT
DATE OF JUDGMENT: 09 JULY 2015
APPLICANT'S ADV: ADV L KOK
INSTRUCTED BY CHRISTO BOTHA
ATTORNEYS RESPONDENTS' ADV: J P
SWANEPOEL
INSTRUCTED BY S J ROUX INCORPORATED