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2024
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[2024] ZAFSHC 251
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Helta Boerdery (Pty) Ltd and Another v De Vos Landgoed (Pty) Ltd and Another (5778/2023) [2024] ZAFSHC 251 (20 August 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case
No: 5778/2023
In
the matter between:
HELTA
BOERDERY (PTY) LTD
1
st
Applicant
AL
MABROOR AGRI (PTY) LTD
2
nd
Applicant
and
DE
VOS LANDGOED (PTY) LTD
1
st
Respondent
DOORNBULT
BEDRYWIGHEDE (PTY) LTD
2
nd
Respondent
HEARD
ON:
Matter disposed of
without oral hearing in terms of section19(a) of the Superior Court
Act 10 of 2013.
JUDGMENT
BY
:
MHLAMBI,
J
DELIVERED
ON
:
19 AUGUST 2024
APPLICATION FOR LEAVE
TO APPEAL
[1]
This is an application for leave to appeal against the whole of the
judgment I granted on 03 November 2023,
in which the applicants’
application for, amongst other things, interdictory relief was
dismissed with costs.
[2] The
grounds of appeal were stated as follows:
“
1.
The learned Judge erred in finding that the matter is not urgent;
2.
The learned Judge erred in finding that the applicants failed to
prove the requirements necessary for a spoliation
order;
3. The
learned Judge erred in finding that the requirements for the granting
of an interim interdict were not met.
4.
The learned Judge erred in granting costs of the application in
favour of the respondent.
5.
It is thus in the interests of justice that an appeal is allowed, as
contemplated in
section 17(1)(a)(i)
and (ii) of the
Superior Courts
Act 10 of 2013
.”
[3] It is
trite that leave to appeal may only be given where the judge or
judges concerned are of the opinion that
an appeal would have
reasonable prospects of success or that there is some other
compelling reason why the appeal should be heard
including
conflicting judgments on the matter under consideration.
[4] In
their heads of argument, the applicants submitted that the court, in
dismissing the application, erred
in making the findings contained in
paragraphs 6, 17, 18, 19, 20, and 22 in that:
1. The
objective common cause evidence before the court did not support a
finding that the second respondent was in
peaceful and undisturbed
possession of the Nelsgift property on 20 October 2023 because the
first applicant had been conducting
farming activities on behalf of
the second respondent since the inception of the project until 20
October 2023.
2. The first
respondent acknowledged and submitted that the second respondent’s
income was generated by the first
applicant's farming activities.
3. The
applicants, the second respondent's majority shareholders, appointed
the first applicant to conduct the farming
activities on behalf of
the second respondent.
4. According
to the first respondent’s version, the second respondent was no
longer active or operational and
was to be deregistered or wound up
by 16 August 2023.
5. The second
respondent never conducted any farming activities and was only
established to provide a vehicle for its
shareholders to conduct
farming activities together and share in the profits.
6.
By the time the application was launched, the second respondent was
dormant and inoperative and could, therefore,
not have been in
peaceful and undisturbed possession of Nelsgift by 20 October
2023.
[1]
[5]
The first applicant contended that it could have been the only entity
that could have been in peaceful and
undisturbed control of Nelsgift
on 20 October 2023 because the first respondent’s principal
place of business was situated
in Colesburg, some 320 km away. The
first respondent arrived and entered Nelsgift only on 20 October 2023
and could, therefore,
not have been in peaceful and undisturbed
possession of Nelsgift prior to this date. The first applicant was
the only party whose
representatives lived and conducted farming
activities in the Bultfontein area where Nelsgift was situated. That
left the first
applicant as the only party who could, on any version
and, practically speaking, have been in peaceful and undisturbed
possession
of Nelsgift as submitted in the founding affidavit.
[2]
[6]
The applicants contended, furthermore, that the relief sought for an
interim interdict flowed from the first
applicant’s right to
its peaceful and undisturbed control and possession of the Nelsgift
property and that the status quo
be maintained until such time as the
application launched in the Kimberly High Court under case no:
1567/2023 was finalised. The
relief was necessitated by the nature of
the relief sought in the Kimberly application, as there was a dispute
relating to the
rights and interests of the applicants and the first
respondent, including but not limited to the first respondent’s
rights
to ownership of the Nelsgift property.
[3]
[7]
Prayer 2 of the notice of motion sought the restoration of the first
applicant’s peaceful and undisturbed
control over the farm
Nelsgift by ordering the first respondent to remove any and all
vehicles and equipment from the premises
as well as any employees
and
/
or
representatives
.
which it may have.
The first applicant did not complain in its papers that this prayer
was not complied with after it received the first respondent’s
undertaking as per the letter dated 24 October 2023. This aspect was
fully dealt with in the judgment. The third prayer in the
notice of
motion was dependent on the second, and a finding that the first
applicant was not in peaceful and undisturbed possession
of Nelsgift
would affect the third prayer adversely.
[8]
The applicants submitted in their heads of argument that the appeal
would have reasonable prospects of success
and that the application
for leave to appeal should be granted. It is trite that the test for
reasonable prospects of success postulated
a dispassionate decision
,
based on the facts and law that a court of appeal could reasonably
arrive at a conclusion different from that of the trial court.
In
other words, the appellants needed to convince the court on proper
grounds that they had 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 exist.
[9] The applicants failed
to discharge the onus that reasonable prospects of success existed
that they would succeed on appeal.
The application for leave to
appeal must, therefore, fail.
[10]
The following order issues.
Order:
The
application for leave to appeal is dismissed with costs.
MHLAMBI, J
On
behalf of the applicant:
Adv
W Roos
Instructed
by
McIntyre
Van Der Post Attorney
12
Banes Street
Westdene
Bloemfontein
On
behalf of the respondent:
Adv
LK Van Der Merwe
Instructed
by:
EDJ
Attorney Inc
Brandwag
BLOEMFONTEIN
[1]
Para
4.1 of the applicant’s heads of argument
[2]
Para
4.2.
[3]
Para
5.