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[2015] ZAECELLC 6
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Roux and Another v Magnolia Ridge Properties 197 (Pty) Ltd and Another (EL556/2012, ECD 1256/2012) [2015] ZAECELLC 6 (14 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, EAST LONDON
Case
no: EL556/2012
ECD
1256/2012
DATE:
14 MAY 2015
In
the matter between:
KEVIN
GLYNN ROUX and
ELIZABETH
JOHANNA VAN
NIEROP
.............................................................
Plaintiff/Respondent
Vs
MAGNOLIA
RIDGE PROPERTIES 197 (PTY)
LTD
.......................................
Defendant/Applicant
ZAMBLI
216 (PTY)
LTD
.....................................................................................................
Third
Party
Date
heard: 13.4.2015
Date
delivered: 14.5.2015
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
TSHIKI
J:
[1]
On the 3rd February 2015, as a Court of first instance, I delivered
my judgment in this matter and made an order in the following
terms:
“
[34.1]
Judgment is hereby granted in favour of the plaintiff for the payment
of:
[34.1.1]
A sum of R1 000 000.00 (one million rand) plus Value Added Tax
together with interest thereon calculated at the legal rate
per annum
from the 11th May 2012 (that being the date of transfer of
defendant’s property to Zambli and receipt by Zambli
of the
purchase price of R52 000 000.00) to date of payment.
[34.1.2]
Defendant is ordered to pay plaintiff’s costs of suit together
with interest thereon calculated at the legal rate
of interest per
annum from allocatur to date of payment such costs to include the
preparation of the heads of argument by plaintiff’s
counsel.”
[2]
In my evaluation of the evidence led at the trial, I came to the
conclusion that it was Roux’s introduction of Zambli
to the
property of Magnolia that resulted in the effective sale of the
property by Magnolia to Zambli. I based my judgment on
not only the
viva voce evidence by the witnesses, but on also the probabilities
of the case as well. See in this regard, inter
alia, paragraphs [15]
to [18] of the judgment.
[3]
In the present proceedings applicant has submitted that a few errors
made by the Court on the evidence referred to by the applicant
could
have the effect of the appeal Court finding in favour of the
applicant. I do not agree. The conspectus of the evidence
part of
which should not be evaluated in isolation from the rest of the
evidence, shows that the respondents’ case herein
was proved on
a balance of probabilities. In my view, the insignificant errors on
the judgment as pointed out by the applicant
referring to incorrect
reference to the evidence cannot, in my view, turn to a balance of
probability in favour of the defendant/applicant.
[4]
Consequently, in my view, there are no reasonable prospects that
another Court could find in favour of the applicant/defendant.
[5]
Therefore, the application for leave to appeal is hereby dismissed
with costs.
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
Counsel
for the applicant/defendant : Adv S Cole
Instructed
by : Cooper Conroy Bell & Richards Inc
EAST
LONDON
Counsel
for the plaintiff/respondent : Adv D De La Harpe
Instructed
by : Bax Kaplan Inc
EAST
LONDON