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[2008] ZAWCHC 276
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Eskom Holdings Ltd v Dorfling NO and Others (10487/2008) [2008] ZAWCHC 276 (24 October 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NUMBER
:
10487/2008
DATE:
24
OCTOBER 2008
In
the matter between
ESKOM
HOLDINGS LIMITED
APPLICANT
and
LEONARDO
DORFLING
NO.
1
st
RESPONDENT
ABRAHAM
SWERSKY
NO.
2
nd
RESPONDENT
GISELA
WEINMANN 3
rd
RESPONDENT
JUDGMENT
(Application
for Leave to Appeal)
BOZALEK
J
The
Applicant in this ruling seeks leave to appeal against my judgment
handed down on the 8 September 2008, in fact, leave to appeal
to the
Supreme Court of Appeal.
The
grounds of the proposed appeal are set out in the notice headed,
"Amended Notice of Application for Leave to Appeal"
which
is dated the 20 October 2008 and which I shall refer to
Those
grounds relate exclusively to what I found was the sole issue in this
matter, namely the meaning and scope of the servitude
registered in
favour of the applicant over respondents' property. Most of the
arguments and points made by Mr Schippers on behalf
of the applicant
in arguing for leave have been dealt with in my judgment. To the
extent that he raised any new points, these have
not caused me to
reconsider the correctness of the view which \ took of the matter.
The
terms of servitude are
r
however, not crystal clear, there being a few textual indications
that the width of the zone in which the applicant's primary
servitudinal rights may be exercised may extend beyond the 31 metre
corridor. This matter is one of heightened importance for the
applicant, which obviously has servitudinal rights over numerous
properties. Applicant's counsel, advised from the Bar that there
are
some 87 servitudes in similar terms.
In
the circumstances, I am persuaded that there is a reasonable prospect
that another court may arrive at a different view of the
matter and
that
LEAVE
TO APPEAL SHOULD THEREFORE BE GRANTED
.
I
am not persuaded, however, that it is appropriate for the appeal to
go in the first place to the Supreme Court of Appeal. Although
there
are few, if any, material factual disputes in this matter, the law
component amounts to no more than the proper interpretation
of the
terms of the servitude.
In
these circumstances, I can see no reason why the appeal should not be
dealt with by a full court of this Division.
There
remains one further point. Mr Borgstrom, for the Respondent, who
opposed the granting of leave, asked that if leave be granted,
it be
limited to the grounds advanced in Applicant's notice of application
or its amended notice. By way of example, he mentioned
that the
question of issue estoppel initially raised by Applicant but not
pursued at the hearing should not be one upon which the
Applicant or
Appellant could rely in the appeal.
Mr
Schippers was quite adamant - in my view incorrectly so -that on
appeal Applicant/Appellant could, as a matter of right, rely
on any
legal point notwithstanding that it was not argued or relied upon
before this Court. I am aware of the principle that, where
there is
no prejudice to the other party, an abandoned legal point may be
revived on appeal. See
Paddock
Motors fPty) Ltd vs Igesund
.
1976 Volume 3
T
SA, page 16, Appellate Division at page 23(d) to (h). This does not
mean, however, that the applicant has a right to argue any
ground of
appeal not covered by the terms of the leave as opposed to a "right"
to ask the Court of Appeal to allow it
to do so. See
Ganes
and others vs Telekom Namibia Limited
2004, Volume 3, SA, page 615 at (b) to (f). I make it clear then that
I am granting leave to appeal on the grounds set out in the
amended
notice of application for leave to appeal.
The
following order is made:
Applicant
is granted leave to appeal the decision to the full bench of this
court on the grounds advanced in its amended notice
of application
for leave to appeal.
The
costs of this application will be costs in the appeal.
BOZALEK,
J