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[2024] ZAGPJHC 1064
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D.E.T v F.T (Leave to Appeal) (158730/2014) [2024] ZAGPJHC 1064 (22 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
: 158730/2014
DATE
:
30-07-2024
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE
22 October 2024
SIGNATURE
In
the matter between
D[...]
E[...] T[...]
Applicant
and
F[...]
T[...]
Respondent
JUDGMENT
LEAVE TO APPEAL
YACOOB,
J
:
This
is an application for leave to appeal a judgment that was handed down
over a year ago. The application for leave only
came to my
attention during April 2024 due to some lapses in the appeals office
and was initially set down for hearing during May
2024. It was
postponed to give the parties an opportunity to attempt to settle the
matter. However, those attempts
were unsuccessful.
The
test for leave to appeal is whether there is a prospect of success on
appeal, and the applicant has to show that another court
is likely to
come to a different conclusion than this court did.
Mr
Seoka, for the applicant, submitted that it is a simple question.
The question is, do the parties agree on the division
of the
estate? If they do not agree, then the matter should be
referred to the liquidator.
The
application before me was for the appointment of a receiver and
liquidator of the joint estate of the parties, who are already
divorced. However, as I found in my judgment, it seems to me
that the question is a little bit more complicated, and one
has to
look at the questions on which the parties disagree. It is only
when the parties disagree on the mode of division,
rather than the
proportions in which the division is to take place, that it is
appropriate to appoint a liquidator.
Mr
Ndlovu, for the respondent, submitted that another court would not
come to a different conclusion, that the parties are not
ad idem
about what their legal rights are within the estate, and that these
questions need to be determined by a court. This is in
fact
consistent with my view, that the applicant ought to have brought the
actual dispute about what the rights of the parties
are to a court,
rather than simply seeking the appointment of a liquidator.
It
matters what the dispute is, or rather it matters what it is the
parties are unable to agree about. So the question is
not
simply whether the parties agree, but what it is they cannot agree
about. I cannot simply accept the argument that if
the parties
do not agree, the question must be referred to a liquidator.
I
am therefore not satisfied that another court would come to a
different conclusion, because there are disputes between the parties
which affect their legal rights and which are not within the purview
of a liquidator to determine. For these reasons,
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED, WITH COSTS.
- - - - - - - - - - -
YACOOB, J
JUDGE OF THE HIGH
COURT
DATE
:
22/10/2024