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2024
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[2024] ZAFSHC 188
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Islandsite 180 (Pty) Ltd and Another v Knoop N.O and Others (1410/2023) [2024] ZAFSHC 188 (14 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
CASE
NO 1410/2023
In
the matter between:
ISLANDSITE
180 (PTY) LTD
FIRST
APPLICANT
RONICA
RAGAVAN N.O.
SECOND
APPLICANT
And
KURT
ROBERT KNOOP
·
N.O.
FIRST
RESPONDENT
JOHAN
LOUIS KLOPPER N.O.
SECOND
RESPONDENT
DINESH
APPAVOO N.O.
THIRD
RESPONDENT
HUGH
VINCENT COOKE
FOURTH
RESPONDENT
Judgment
by:
VAN RHYN J
Heard
on:
14 JUNE
2024
Delivered
on:
14 JUNE
2024
[1]
This is an
application by lslandsite 180 (Pty) Ltd (in Business Rescue)
(lslandsite), the first applicant and Mrs Ronica Ragavan
(Mrs
Ragavan), the second applicant, collectively
referred to as
the applicants,
for leave to
appeal against the whole of the
order
handed down by this court 5 December 2023 and the reasons, delivered
on 20 February 2024.
The
application for leave to appeal is opposed by the first and second
respondents, the business rescue practitioners (the BRPs).
The
application for leave to appeal is to the Supreme Court of Appeal.
[2]
The
application for leave to appeal was enrolled to be heard virtually on
14 June 2024. A directive was issued that the parties
are to submit
heads of argument. Heads of argument
on behalf of
the applicants were filed on 27 May 2024 and on behalf of the BRPs on
30 May 2024. The fourth respondent filed a notice
to abide by the
decision of the court. The third respondent did not participate in
the matter during the initial hearing on 5 December
2023 nor in
the application for leave to appeal.
[3]
This matter
pertains to an opposed application (Part B of the main application)
wherein the applicants sought to take the decision
of the BRPs to
sell the property of lslandsite situated at Constantia, Cape Town on
review. In Part A, the applicants obtained
an interim interdict
preventing the sale of the property pending the determination of Part
B. The applicants further more sought
an order in terms whereof
lslandsite be taken out of business rescue. At the hearing of the
matter on 5 December 2023 the court
was furthermore presented with
three interlocutory applications:
(a)
a Condonation
application;
(b)
a Rule 30
application to set aside the notices of set down; and
(c)
a
postponement/stay application by the BRPs for the postponement
or stay of
Part B pending the Supreme Court of Appeal's determination
of Part A.
[4]
The
applicants' grounds for leave to appeal can succinctly be summarised
as follows:
(a)
That the
applicants did not have a fair hearing, given that the main
application was not before the court when it was dismissed;
(b)
That the court
possessed
the
required
jurisdiction
to adjudicate
Part B of the
main
application;
(c)
That the
applicants:
•
Had
already obtained leave under section 133 of the Companies Act
[1]
;
•
That
such leave was not necessary; and
•
That
the absence of such leave is not fatal to an application.
(d)
That the board of lslandsite has standing in its own right and could
pursue the litigation with or without the company
as a co-applicant.
[5]
The
application for leave to appeal is opposed by the BRPs on the basis
that the core issue, which according to the BRPs dealt the
fatal blow
to Part B of the main application,
has not been
identified or addressed by the applicants. It is argued by the BRPs'
that Part B of the main application could only
be entertained by the
court on one of two alternatives:
(a)
Firstly, if
the court possessed the required jurisdiction to adjudicate Part B of
the main application.
(b)
Secondly,
and
only
if
the
court
determined
that
it
possessed
the
necessary
jurisdiction, whether the applicants
,
specifically
Mrs Ragavan, had standing to claim any relief sought in Part B of the
main application.
[6]
The
legislation dealing with the circumstances upon which leave to appeal
may be granted is set out in section 17(1) of the Superior
Courts
Act
[2]
.
In
Ramakatsa
and Others v African National Congress and Another
[3]
the
Supreme Court of Appeal, in paragraph 10 of its judgment regarding
the various judgments at high court level debating whether
the use of
the word
"would"
as
opposed to "could" possibly mean that the threshold for
granting leave to appeal has been raised, held as follows:
"If
a reasonable
prospect of success is established, leave to appeal should be
granted. Similarly, if there are some other compelling
reason why
the
appeal
should
be heard,
leave to appeal should be granted. The test of reasonable prospects
of success postulates a dispassionate decision based
on
the facts and
the law that a court of appeal could reasonable
arrive at a
conclusion different to that of the trial court. In other words, the
appellants
in
this
matter
need to convince this court on proper grounds that they have
prospects of success on appeal. Those prospects of success must
not
be remote, but there must exist a reasonable chance of succeeding. A
sound rational basis for the conclusion that there are
prospects of
success must be shown to exists."
[7]
In respect of
the first ground of appeal, namely that the applicants did not have a
fair hearing
on 5 December
2023,
in
that
the
applicants'
arguments
relevant to
Part B of
the
main
application were not heard at all, I am in agreement with the
contention on behalf of the applicants that the specific arguments
relevant to Part B were not addressed at the hearing on 5 December
2023. What Mr Hellens SC, counsel on behalf of the applicants,
essentially raised now is that the procedure followed by this court
in its decision-making process was flawed.
I agree with
the contention by Mr Hellens SC that the Rule 30 and the
postponement/stay applications were identified as the first
set of
disputes to be argued and resolved where after the merits of Part B
of the main application will be addressed.
[8]
Mr
Hellens
SC, with reference to section 34 of the Constitution
and
Lane
and Fey NNO v Dabelstein and Others
[4]
,
argued
that the first ground of appeal is not concerned with the correctness
of the court's decision but is concerned with the fairness
of the
court proceedings as it developed on 5 December 2023. The result of
the procedure followed by this court, was that the applicants'
relief
as sought in Part B of the main application had not yet been
addressed when the order dismissing the relief sought in Part
B was
delivered.
[9]
In order to
succeed, therefore, the applicants must convince this court on proper
grounds
that
they
have
reasonable
prospects
of
success
on
appeal.
I
have
re-considered
the order delivered on 5 December 2023 as well as the procedure
followed at the hearing of the matter and dispassionately
considered
the application for leave to appeal.
[10]
I am of the
view that a reasonable prospect of success has been established by
the applicants and leave to appeal should be granted.
[11]
ORDER:
1.
The applicants
are granted leave to appeal to the Supreme Court of Appeal
,
against the
whole of the judgment and order by this court on 5 December 2023 and
20 February 2024.
2.
The costs of
the application for leave to appeal shall be costs in the appeal.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Applicants:
ADV.
M HELLENS SC
ADV
B PRINSLOO
Instructed
by:
HONEY
ATTORNEYS
BLOEMFONTEIN
On
behalf of the First and Second Respondents:
ADV.
L VR VAN TONDER
Instructed
by:
MCINTYRE
VAN DER POST ATTORNEYS
BLOEMFONTEIN
[1]
Act
71
of 2008.
[2]
Act
10
of
2013.
[3]
Case
No. 724/2019)
[2021] ZASCA 31
delivered on 31 March
2021.
[4]
2001
(2) SA 1187
(CC) at
1190C.