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[2015] ZAGPPHC 702
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Rusternburg Platinum Mines Ltd v Jensen (19304/2014) [2015] ZAGPPHC 702 (24 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA,
(NORTH GAUTENG,
PRETORIA)
Case
Number: 19304/2014
In
the matter between
RUSTENBURG
PLATINUM
MINES
LTD
Applicant
and
DOROTHEA
SOPHIE
JENSEN
Respondent
J U D G M E N T
(Leave to appeal)
MAKGOKA,
J
[1]
This is an application for leave to appeal against an order of
the judgment of this court handed down on 20 March 2015.
It is
opposed by the victorious applicant in the main application, who is
now the respondent in this application.
[2]
The test applicable whether or not to grant leave to appeal, is trite
and well settled. It is whether there are reasonable prospects
that
another court, given the same set of facts, might arrive to a
different conclusion. A corollary consideration is that leave
to
appeal is not granted for the mere asking. A proper case has to be
made out. That common law approach has been codified by s
17 of the
Superior Court Act 10 of 2013.
[3]
The proper approach to applications for leave to appeal was re-stated
by the Supreme Court of Appeal in S
v Magadla
2010 (2) SACR
316
(E) - equally apposite in civil cases. The foot-note reads:
"The chief
requirement for the granting of leave to appeal was the existence of
a reasonable prospect of success on appeal.
The mere
possibility
that another court might come to a different conclusion was not
sufficient, nor was it enough that the case was arguable,
nor that
it
would
offer
solace
to
the
applicant
to
know
that
the
final
decision
would
be given
by
a higher court."
(my underlining for
emphasis)
[4]
The grounds of appeal are simply a regurgitation of the arguments
advanced in the main application. All of them have been adequately
dealt with in the judgment. I am not persuaded that any of them
justify a finding that another court might come to a different
conclusion.
[5]
There is an argument which is raised for the first time in the
notice of application for leave appeal. The argument
is
that even if the servitude could be construed to an exclusive right
on the respondent, it is a single right that entitles the
respondent
to select and use one or more trading sites on the property.
According to the applicant, the respondent cannot invoke
the
respondent from conducting business on the property. The applicant
placed reliance for this contention on a passage in
Hollmann
and another v Estate Latre
1970 (3) SA (A) at 646G.
[6]
I do not understand the remarks of the learned Chief Justice in that
case to suggest that the right to select excludes the right
to
restrain others from similarly selecting trading sites. On the
contrary, the tenor of the judgment confirms the long
standing
position
since
Willoughby's
[1]
that
a
servitude
to
trade upon
a
particular
property
could be constituted in favour of another property. Even assuming the
applicant's argument to be correct that the right
is only limited to
a selection of trading sites, it should logically follow that
inherent in that right is to restrain others from
selecting trading
sites and trading on them. As Mr
He/lens,
for the respondent,
correctly argued, there would be no point in having exclusive
rights if others can exercise similar rights
in respect of the same
property.
[7]
Taking into consideration all of the above factors, and having
carefully and dispassionately applied my mind to the applicable
test,
I am of the view that there are no reasonable prospects that another
court might arrive to different conclusion.
[8]
In the circumstances the application for leave
to appeal falls to fail. The following order
is made:
1.
The application for leave to appeal is dismissed with costs,
including the costs of senior counsel.
______________________
T. M. Makgoka
Judge
of the High Court
Date
of hearing:
21 August 2015
Judgment
delivered:
24 August 2015 Appearances:
Counsel
for the Applicant: Adv.
E Rudolph
Instructed
by:
Serfontein Viljoen & Swart, Pretoria Counsel for the
Respondent:
Adv. M.R. Hellens Sc
Instructed
by:
Klagsbrun Edelstein Bosman Vries Inc, Pretoria
[1]
Willloughby
's Consolidated Co. v Copthall Stores
1918
AD
I
.