IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
WILLEM DE SANDERS GREEF N.O.
RUDOLPH PHILIP BOTHA N.O.
(In their capacities as Trustees of the W De S Greeff
Family Trust)
and
GPP PROPERTIES CC
THE REGISTRAR OF DEEDS, CAPE TOWN
JUDGMENT
PARKERAJ CASE NO: 20506/2023
First Applicant
Second Applicant
First Respondent
Second Respondent
{1] On the 13th September 2024, I granted an order in which I upheld the First
Defendant's exception. In addition, I granted the Plaintiff's leave to amend the
particulars of claim if it so desired within 10 days from the date of the order. Costs
were also awarded against the Plaintiff including the cost of two counsel where so
employed on scale A and scale B respectively.
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[2] On the '7111 of October 2024. the plaintiff filed its leave to appeal which was heard
on the 31st of October 2024.
(3) The grounds of the appeal opined by the Appellant were that there is a
reasonable prospect that the Court of Appeal upon a proper interpretation of the court's
judgment and order:
3.1. That It is in the interest of justice and to maintain the cardinal feature
of our democracy necessary to unbundle the order and to unscramble
the settlement agreement. The facts and reasons upon which the
court relied in support of its aforesaid finding were not pleaded by the
plaintiffs as part of their particulars of claim. Consequently , the court
erred to in its determination of the exception issues. In so doing, the
appellant relied on various case law including Road Accident Fund v
Taylor and Other Matters.1
3.2. The court erred not to hold that the tenns of the setttement agreement
did not accord with the law and the settlement agreement could not
have been made an order of court on the 17th of November 2014. An
argument advanced by the Appellant is that the court is inter alia only
entitled to make a settlement agreement an order of court If and when
Its tenns accord with the law and are not at odds with public policy2•
It was also argued that the law will not preserve a transaction which it
has prohibited3• Furthermore, courts are generally reluctant to decide
upon an exception regarding the interpretation of a contract without
the hearing of admissible evidence when such evidence is pleaded or
1 Road Accident Fund v Taylor and Other Matters 2023 (S} SA 147 (SCA) para 31
2 Eke v Parsons 2016 {3) SA 37 (CC) para 26
a Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 3S (SCA) para 29
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appears from the relevant contract. There is a reasonable prospect
that a higher court will hofd that the settlement agreement on a proper
Interpretation thereof, do not accord with the provisions of the law .
Thus the settlement agreement is null and void because of non
compliance with the provisions of Section 39( e )(ii) of the Act. 4 The
Plaintiff avers that its particulars of claim contained averments to
support a valid and enforceable cause of action.
3.3. The court ordered In holding that the Plaintiffs are obliged to effect the
restitution as it was necessary for the Plaintiffs to plead restitution or
tender restitution to complete their cause of action, albeit with a lack
of particularity. In respect of this ground of appeal, the doctrine of
restitution in integrum does not apply when no valid contract came into
existence and consequently, it was not necessary for the Plaintiff to
plead and tender restitution in order to complete the cause of action.
3.4. The court erred by not finding that the Plaintiffs particulars of claim do
upon reasonable interpretation disclose a valid and enforceable cause
of action were not defined when the court found that the particulars of
claim will have to be more elaborate. In furtherance of its argument,
plaintiff submitted that the court erred to consider facts and reasons
that were not defined in the particulars of daim for adjudication and
determinat ion by the court.
3.5. The court erred in finding that the particulars of claim are bad In law.
4 Swart v Smuts 1971 (1) SA 819 (A) at 829C to H; Adlem and Another v Arlow 2013 (3) SA 1 (A)
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[4) I expounded on the law of exceptions at paragraph 22 of my judgment, that
exceptions exist to weed out cases without legal merit Much turned on a court order
which remained binding until set aside. I have also reflected on the Interest of justice
when referring to Section 92(1 ), 92(3) and section 197(1 ), of the Constitution of the
Republic of South Africa, which I will not repeat here, suffice to say it is untenable for
parties to Ignore court orders.
[5] In a nutshell, the Appellant takes issue with paragraphs 22 to 26 of my judgment
and states that there Is a reasonable prospect that a Court of Appeal, will upon proper
interpretation of the judgment5 come to a different conclusion . That it is the purpose of
pleadings to define the issues for the other party as well as the court6, and the facts
and reasons upon which the court relied in support of its aforesaid findings were not
pleaded by the plaintiffs as part of their particulars of claim. Consequently, the court
erred to adjudicate and determine the exception on the basis of such unpleaded
issues.
The test
[6] Section 17( 1) of the Superior Courts Act, no. 1 O of 2013, provides as follows:
•11 Leave to appeal
(1} Leave to !}/)peal may only be given with a judge or judges concerned or of the
opinion that-
(a) (i) The appeal would have a reasonable prospect of success
or;
5 HLB International (South Africa) (Pty) Ltd v MWRK Accounts and Consultants (Pty) Ltd 2022 {51 SA 373 (SCA)
paras 25 to 28
6 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA} para 13
Molusl and Others v Voges NO and Others 2016 (3) SA 370 (CC) para 28
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(ii) There is some other compelling reason why the appeal should
be heard including conflicting judgments on the matter under
consideration;
(b) The decision sought on appeal does not fall within the ambit of section
16(2)(a); and
(c) Wh&re the decision sought to be appealed does not dispose of all the
issues In the case the appeal would lead to adjust and prompt resolution
of the real issues between the parties"
[7] From the wording of the section 17(1 ), the threshold for granting the leave to
appeal has been raised. The fonner test that leave should be granted if there is a
reasonable prospect that another court might come to a different conclusion is no
fonger the basis for an appeal. The Appellant now has to convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on appeal.
A sound rational basis that there is such a prospect of success on appeal has to be
demonstrated7.
[8] In resisting the leave to appeal, First Respondent relied on Ramakatsa and
Others v African National Congress and Another8.
"the test of reasonable prospects of Sussex postulates a dispassionate
decision bssed on the facts ar>d the law that the Court of Appeal could
reasonably 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
7 MEC Health, Eastern cape v Mkhitha (1221/15) l2016) ZASCA 176 (25 November 2016) para 17
8 Ramakatsa and Others v African National Congress and Another (2021] ZASC.A 31 (31 March 2021 at para 10
and see Fouf_Wheel Drive Accesso,y v Rotton 2019 ,31 SA 451,SCA at aara .34.
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succeeding . A sound rational basis for the conclusion that there are prospects
of success must be shown to exist"
(9) In applying this test, the operative words are prospects of success which I then
considered thus as follows ..
Evaluation
[10] The general prlnclples has been spelt out in Goodwin Stable Trust v Duohex
(Pty) Ltd and Another9 where it was held:
"whilst there may be a tendency to seek to grant leave to simply to allow
outstanding questions to be finally determined, it seemed to me that, in
balancing the rights of the parties to the litigation the court's responsibility is to
avoid the temptation simply to take the opportunity to have the question
answered and rather to apply its mind as to whether or not the answer will
probably be in favour of the applicant for leave to appeal. "
[11] Much of the argument presented by the Appellant was presented at the hearing
and I agree with the Respondents that the Appellant has sought to rehash the very
same arguments In Its leave to appeal.
[12] The Appellants contend that the Implied finding in paragraph 27 of the judgment
that the court was entitled to make the settlement agreement an order of court is
relevant to this issue. This is not so. What the ratlonale conveyed is, the order was
competent at the time it was granted. For the unbundling of that order and to ensure
the particulars of claim suffice , it will have to be more elaborate, which falls on the
lap of the Appellant.
'Goodwin Stable Trust v Duohe,c (Pty) Ltd and Another 1999 (3) SA 353 (C) at 354/355
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[13] The Appellants' attempt to counter paragraph 27 of the judgment does not
assist It. I say so because it alleges that the Plaintiff did tender restitution and therefore
there is a reasonable prospect that the Court of Appeal will on a proper interpretation
of the Plaintiffs particulars of claim hold_that:
13.1 Restitution is a distinct contractual remedy that applies when a contract
containing reciprocal rights and obligations is cancelled10•
13.2 The doctrine of restitutio in integrum does not apply when no valid
contract came into existence -I.e. when either the condictio indebltl or
the condltlo ob tsrpem vel lnlustam causam find application11.
13.3 Consequently it was not necessary for the plaintiffs to plead and tender
restitution in order to complete their cause of action.
13.4 The Plaintiffs particulars of claim is amenable to the reasonable
interpretation that the Plaintiffs df d not plead that they tender restitution
in that the Plaintiffs merely required the cancellation of the relevant
deeds of transfer and servitude in order to revive the parties rights in
terms of section 6(2) of the Deeds Registries Act as they existed
immediately before the conclusion of the settlement agreement and the
granting of the order of 17th November 2014.12
13.5 Consequently , the court erred to hold that the Plaintiffs are obliged to
effect the restitution, albeit with a lack of particularity. I do not agree. I
remain of the view that the particulars need to be elaborate.
JO Baker v Probert 1985 (3) SA 429 (A) at 438H to 439C
11 Varona Healthcare Network (Ply) Ltd v Medshleld Medical Scheme 2018 (1) SA 513 (SCA) paras 48 to 54
u Especially with reference to paras 12.6, 16.3, 16.4 and the prayers contained in the particulars of dalm
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[14) In concluslon for the reasons In my judgment, it is my view that there is no
substance and weight to the Intended appeal. It is my view that there are no
reasonable basis that there would be prospects of success on appeal. The Appellant
has shown no compelling reason why the appeal should be heard, and has not
advanced conflicting judgments on the matter under consideration. Therefore, the
appeal has not met the threshold for the test for an appeal.
[15] It is therefore ordered that:
15.1 The appeal Is dismissed
15.2 The appellant Is liable for costs including the costs of two Counsel on
scale A.
Appearances
Counsel for the Plaintiff:
Instructed by: PARKER,-J
Acting Judge of the High Court
Adv D J van der Walt SC
Bloemfontein Chambers
Spangenberg Zietsman & Bloem Attorneys
Bloemfontein
Counsel for the First Defendant: Adv A La Grange SC & Adv L Llebenberg
Cape Town Chambers
Instructed by:
Date of Hearing:
Date of Judgment: Nel Mentz Steyn Ellis Inc.
Humansdorp
31 October 2024
20 February 2025
This judgment was handed down electronically by circulation to the parties'
representatives by email. 9