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[2013] ZAGPPHC 209
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Van Greunen v Maqhuingana (Edms) Bpk (23523/2013) [2013] ZAGPPHC 209 (28 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT)
CASE
N0:23523/2013
DATE:28/06/2013
In
the matter between:
WILLEM
H VAN
GREUNEN
........................................................................................
Applicant
and
MAQHUINGANA
(EDMS)
BPK
..................................................................................
Respondent
JUDGMENT
ON LEAVE TO APPEAL AND APPLICATION FOR RULE 49(11)
LEGODI J,
[1]
Parties in these proceedings would be referred to as in the main
application. Before me, two applications were argued. First,
it is
the application for leave to appeal the decision of my sister
Pretorius J granted on the 10 May 2013 in terms whereof the
respondent (the applicant in the application for leave to appeal) was
ordered to deliver to the applicant a black male Impaia specified
and
described in the notice of motion.
[2]
The second application is brought by the applicant in terms of Rule
49(11). He wants leave to have the order granted by my Sister
Pretorius J on the 10 May 2013 be executed.
[3]
Regarding the leave to appeal, the real issue before me is, whether
another court might find differently from the finding by
Pretorius J.
This application for leave to appeal was laid before me due to the
fact that Pretorius J is on long leave and out
of the country. I am
dealing with this matter with her consent. Both counsels for the
parties did not object to this seen in light
of the apparent urgency
of the matter.
[4]
Coming back to the leave to appeal, it is not my intention to seek to
rewrite my Sister’s judgment. In brief, she had
made a finding
that the applicant had paid to the respondent the full purchase price
for the black male Impaia in the sum of R220
000. Consequently, she
found that the respondent was obliged to deliver the Impaia in
question.
[5]
The finding is criticized on the basis that another court might find
that there is dispute of fact around the payment of the
purchase
price in full which could not be resolved on the papers. Amongst
others, it is contended that the applicant had materially
contradicted himself when in his founding affidavit suggested that
the full purchase price was paid by 26 February 2013, whilst
in his
replying affidavit he indicated that the outstanding balance of R60
000 cash was paid on the 2 March 2013.
[6]
However, the communication between the applicant and the respondent
from the period 2 March 2013 up to the time the respondent
deposed to
his answering affidavit, never raised the issue of non-payment of the
purchase price in full.
[7]
Instead, the communication or correspondence suggested that payment
in full had taken place and that the applicant could remain
to be the
owner of the impala whist on the property of the respondent until the
respondent had found a replacement. The meantime,
the respondent was
to retain the Impala in question for breeding purposes in favour of
the respondent.. Pretorius J dealt with
these issues in her judgment
and I do not think that another court might find differently.
Therefore the application for leave
to appeal ought to be dismissed.
[8]
This then brings me to deal with the merits of the application under
Rule 49(11). Operation of an order or execution of judgment
granted,
is automatically suspended on the noting of an application for leave
to appeal ,save where leave to execute is granted..
[9]
An exercise of discretion is required in deciding whether or not to
order operation of the order or execution of judgment. In
the present
case, the Impala was purchased for the purpose of breeding. Any delay
in the delivery of the Impala pending appeal
process could have
serious consequences for the applicant.
Process
of appeal could take several months if not years before finalization.
Secondly, on the respondent’s version R160 000
has been paid.
An amount of R60 000 is still outstanding. The respondent is not
prepared to pay back the applicant the said amount
of R160 000. On
the other hand, the respondent is using the said Impala for breeding
purposes something that the respondent alleges
it is doing because it
had not as yet found replacement for the Impala that he had sold to
the applicant.
[10]
Having regard to all of the above, balance of convenience favours the
applicant. The applicant is likely to suffer more prejudice
should
the Impala not be delivered to him. I do not find it necessary to
order the applicant to pay any security in addition to
the R160 000
the respondent is retaining.
[11]
Consequently, an order is hereby made as follows:
11.1
The application for leave to appeal is hereby dismissed with costs,
11.2
The applicant is hereby granted leave to execute the order granted by
Pretorius J on 10 May 2013,
11.3
The respondent to pay the costs of the application in terms of Rule
49(11)
M
F LEGODI
FOR
THE APPLICANT
ILZE
EICHSTADT ATTORNEYS
c/o
OLTMANS ATTORNEYS
Menlo
Law Chambers
No
4911de street Menlo Park Pretoria
FOR
THE RESPONDENT
VAN
RENSBURG ATTORNEYS
c/o
MOLLER& PIENAAR INC
Suite
1A 1st FLOOR Hatfield
Gables
484 North Hilda Street Hatfield