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[2014] ZAGPPHC 168
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Sandton Square Portion 7 (Pty) Ltd v Haloware Investments (Pty) Ltd (11699/2013) [2014] ZAGPPHC 168 (3 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
PROVINCIAL DIVISION, PRETORIA)
Case
No: 11699/2013
DATE:
3 APRIL 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
SANDTON
SQUARE PORTION 7 (PTY)
LTD
.....................................................
Applicant
and
HALOWARE
INVESTMENTS (PTY)
LTD
.........................................................
Respondent
JUDGMENT
- Leave to Appeal
MAKGOKA,
J:
[1]
This is an
application for leave to appeal against the whole of the judgment of
this court and its consequential order, made on
7 February 2014, in
terms of which it was declared that the applicant’s
cancellation of the agreement between the parties,
was not valid. The
application is opposed by the respondent.
[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.
This common law test has now been codified
in s J 7 of the
Superior
Courts Act, 10 of 2013
.
[3]
At the commencement
of the hearing of this application, I expressed my prima facie
view that leave to appeal
should be granted. For that reason, I invited counsel for the
respondent to address me first. In my view,
there are two issues.
First, if it is accepted that clause 12 of the agreement between the
parties constitutes a lex commissoria,
it follows that an enquiry
into the fairness or otherwise of its effect, is irrelevant. In my
view there can be no serious debate
that it is, and I did not
understand counsel for the respondent to contend otherwise.
[4]
The second issue is
whether or not the respondent expressly relied on clause 12 as a lex
commissoria. Having regard to the papers
as a whole, I am satisfied
that the applicant did. The whole of its case, both in the eviction
application and in the application
giving rise to the present one,
has ever been that it cancelled the agreement because the respondent
had failed to pay the levies.
I am satisfied that this aspect was
sufficiently canvassed in the papers.
[5]
For the above
reasons, and having had careful and detached regard to the judgment,
the notice of application for leave to appeal,
as well as the oral
arguments, I am satisfied that indeed there are reasonable prospects
that another
court
might come to a different conclusion. I am therefore inclined to
grant leave to appeal. Such leave should be to the Full Court
of this
division.
[6]
In the result the
following order is made:
1.
The applicant (respondent)
is granted leave to appeal to the Full Court of
the
Gauteng Provincial Division;
2.
The costs of this
application are costs in the appeal.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT