IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO : 21072/2019
REPORTABLE
In the matter between :-
NICO VAN WYK PLAINTIFF
and
WILLEM JOHANNES VENTER NO. FIRST DEFENDANT
ALETTA SUSARA MAGRIETA VENTER NO. SECOND DEFENDANT
SHARL VENTER NO. THIRD DEFENDANT
WILLEM GABRIEL JORDAAN NO. FOURTH DEFENDANT
(in their capacities as trustees of the
VENTER FAMILIE TRUST)
Coram : MOOSA AJ
Heard : 18 June 2025
Delivered : 26 June 2025 (delivered via email to the parties )
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ORDER
___________________________________________________________________
The plaintiff’s application for leave to appeal is dismissed with costs, such costs
to include counsel’s party -and-party fees on Scale C.
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JUDGMENT
(LEAVE TO APPEAL)
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Moosa AJ :
[1] This judgment relates to plaintiff’s application for leave to appeal my judgment
and order of 12 May 2025 (‘the order ’). It is reported sub nom Van Wyk v Venter NO
and Others [2025] ZAWCHC 197 . I granted absolution from the instance with costs .
As my principal judgment gives my reasons for the order, I do not traverse them
here.
[2] For convenience sake , the parties are referred to as in my principal judgment .
[3] The plaintiff locates his application solely on the basis that there is a
reasonable prospect of success. He asserts the following grounds of appeal : (i) that I
applied the test for absolution wrongly on the facts for both his claims ; (ii) that I erred
in placing undue weight on selected documents favouring the defendants ’ defences
and insufficient weight on the plaintiff’s oral testimony and documents favouring the
plaintiff ’s case , in particular the so -called ‘red-flags letter ’; and (iii) that I erred in
finding that a presumption applicable to the enrichment claim did not apply in casu.
Applicable legal principles
[4] The principles governing applications for leave to appeal are now fairly
settled. They are codified mainly in s 17(1) of the Superior Courts Act 10 of 2013. In
this matter, it is not argued that any contentious point of law is at play deserving of
an appellate court’s attention ; or that there is any other comparable ‘compelling
reason’ as contemplated in s 17(1)( a)(ii) why the appeal should be heard (such as, a
discreet issue of public importance requiring adjudication ; or the presence of
conflicting judgments on any matter a rising in this case ). Despite no other compelling
reason being advanced by the plaintiff , I enquired into the existence of any such
ground . See Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35
(SCA) para 2. I did not find any ‘compelling reason ’. Therefore , the enquiry here is
singular, namely, whether I opin e that a reasonable prospect exists that an appeal
would succeed .
[5] In this case, an a ppeal is not about giving the plaintiff a second chance so that
he gets anot her bite at the proverbial cherry to possibly (i.e., maybe) get a different
outcome . Here, the intended appeal envisages the attainment of a different result.
The plaintiff must demonstrate that an appellate court will (not might) find differently
on crucial matters of fact or law which would bring about a different outcome . See
MEC for Health, Eastern Cape v Mkitha and Another [2016] ZASCA 175 (25
November 2016) paras 16 - 17. This test for leave to appeal is more stringent than
that which operated under the old Supreme Court Act, 1959. See Notshukovu v S
(157/2015) [2016] ZASCA 116 para 2. A mere possibility that another court ‘might ’
come to different concl usion , or that the case is arguable on appeal , or that the case
may n ot be labelled as ‘ hopeless ’ is insufficient . The plaintiff must convince a judge
‘on proper grounds that he has prospects of success on appeal and that those
prospects are not remote but have a realistic chance of succeeding’ (S v Smith 2012
(1) SACR 567 (SCA) para 7 ).
[6] Therefore , leave to appeal can be granted ‘only’ if I opine positively that a
sound , rational basis exists to justify a conclusion that a realistic prospect exists that
an appellate court would (not might) decide the absolution application differently (i.e.,
that absolution would not be granted ). If not, then this application for leave to appeal
must itself fail. See Ramakatsa and Others v African National Congress and Another
[2021] ZASCA 31 ( 31 March 2021) para 10.
Application of the legal principles to the facts in casu
[7] The application for leave on both claims hinges largely on plaintiff’s testimony .
His counsel submits that there was ‘nothing improbable about Nico’s evidence’ (para
24). Thus, he contends that I erred in the ‘rejection of Nico’s evidence’ (para 24) .
This ground for appeal is repeated in relation to both the enrichment claim and the
loan claim. The problem with th is ground is that the plaintiff’s evidence was not
rejected as ‘improbable’. An example of this appears at para 89 of the main
judgment . It records that I found that the plaintiff’s estate was impoverished as he
had testified .
[8] The application for leave to appeal in relation to both claims is underpinned by
a common theme, namely, that I erred in not considering that it was n ever put to the
plaintiff during cross -examination that Johan and/or Sharl Venter would testify and
that th ey would contradict the plaintiff’s testimony in material respects for both
claims .
[9] It is correct that it was never put to the plaintiff that either Johan or Sharl
Venter would testify. However, t his is not a basis to merit an appeal. This is not a
criminal trial where the accused’s version, as s/he intends to testify, is to be put to a
state witness(es) while s/he is in the witness box. In a civil trial, a cross -examination
would be guided by the plead ings. Mr Bothma was required to pose questions to the
plaintiff which elicit ed response s that he (Mr Bothma) could later argue either tended
to prove a defence plea ded by the trustees of the Venter Familie Trust , and/or which
tended to disprove the plaintiff’s claim as pleaded and/or testified by him . Mr Bothma
duly did so. Therefore , a key hook on which the plaintiff hangs his bid for leave to
appeal holds no water . It cannot justify an opinion that a reasonable prospect exist s
for success .
[10] In the application for leave on both claims, plaintiff’s oral testimony is elevated
to high prominence and the documentary evidence that contradicts and, to a large
extent , even destroys the substratum on which plaintiff’s case is built in relation to
both claims is downplayed . It is difficult to conceive on what basis an appellate court
would conclude that, on the evidence viewed as a whole , the plaintiff proved a prima
facie case in relation to his enrichment claim and loan claim in the sense discussed
at paragraphs 6 to 7 of my principal judgment . Any prospect thereof is remote, at
best.
[11] At the end of th e plaintiff’s case, all the evidence must be viewed as a whole.
Plaintiff’s testimony cannot be considered in isolation , nor may it be given more
weight than it is entitled . Any perceived weakness (es) in the plaintiff’s oral testimony
may be bolstered by o ther available evidence which may assist to establish a prima
facie case. Similarly, any perceived strengths in the plaintiff’s oral testimony may be
undermined by other available evidence tendered at the trial . All this is important in
casu because the pl aintiff is a single witness with an interest in his case’s outcome.
[12] The plaintiff’s oral testimony had weaknesses identified in my main judgment.
These were exacerbated by documentary evidence dealt with at the trial . All this
merited a finding that the plaintiff failed to prove a prima facie case in relation to his
twin claims. I have dispassionately examined the grounds advanced for leave to
appeal . I find no good basis to justify an opinion that another court will hold
differently.
[13] For the enrichment claim, t he plaintiff must establish prima facie proof of, inter
alia, the existence of a payment not only by himself to the Venter Familie Trust but
also by the latter , represented by the plaintiff, to West Coast Packaging CC (WCP) in
the form of a loan . See paragraphs 13 to 14 of the main judgment. In the pleadings,
defendants d isputed that the Trust was enriched at the plaintiff’s expense in any
sum.
[14] To prove that the plaintiff paid the R2m to WCP via Cape Waste Paper CC
(CWP) in 2017 as alleged in the P articulars of Claim (the POC) , the plaintiff relied on
detailed ledgers of WCP .1 The ledgers a re pa rt of the ‘accounting records ’
maintained under s 56 of the Close Corporations Act 69 of 1984 (the CCA) . The
plaintiff testified that the accounting entries show the receipt of the R2m by WCP in
three tranches (July, September, and October 2017 ). See paragraph s 17, and 101 to
102 of my principal judgment. At the end of the p laintiff’s case, these facts are
common cause .
[15] Under cross examination, the plaintiff was constrained to concede that the
same ledger entrie s relied on by him show that e ach of the deposit s was credited to
his personal loan account. His loan account entries accord with s 56(1)( a) and (2) of
1 According to para 6 of the POC, WCP was converted from a close corporation to a private
company on 8 October 2018 . This date falls outside of the financial year in which the R2m was paid
as detailed in para 15 of the POC.
the CCA. At the end of the plaintiff’s case, i t is common cause that neither the R2m ,
nor any part thereof , was ever credited to a loan account held in the name of the
Venter Familie Trust with WCP . The 2018 financials are align ed with the accounting
records .
[16] The plaintiff testified that he was not responsible for the bookkeeping and that
he was unaware that the R2m was n ot credited to the Trust’s loan account with WCP .
While it is common cause that the plaintiff was not responsible for the bookkeeping
of WCP, it was disput ed that he was unaware of the contents of his loan account
entries. To enable members of corporations to have knowledge of accounting
records, s 56(4) of the CCA is important. It reads: ‘ The accounting records shall be
kept at the place or places of busine ss or at the registered office of the corporation
and shall, wherever kept, be open at all reasonable times for inspection by any
member.’ The plaintiff did not testify that this provision was not complied with, or that
he was denied access to the accounting records. The evidence reveals th at he had
access whenever needed .
[17] Things get worse for the plaintiff as regards his application for leave to appeal .
Section 56( 2) of the CCA records that a corporation’s accounting records must
include all loans made by members, and every individual transaction in a member’s
loan account ‘shall contain sufficient detail of individual transactions to enable the
nature and purpose t hereof to be clearly identified’ . Each of the ledger entries relied
on by the plaintiff perta ining to the three deposits listed in paragraph 15 of the POC
comprising the R2m contain a narration. During his evidence in chief, the plaintiff
relied on the description (i.e., narration) related to each ledger entry concerned to
show that the deposits in question align with the averments made by the plaintiff in
the POC.
[18] None of the detail s provided in relation to the three de posits listed in
paragraph 15 of the POC indicate that their individual or collective nature and
purpose is as averred by the plaintiff, namely, that the deposits are payments by the
plaintiff to WCP on behalf of the Venter Familie Trust who is the true le nder of the
R2m (not plaintiff) . Accordingly, the accounting records relied on by the plaintiff do
not support his case.
[19] The accounting records relied on by the plaintiff were used to prepare the
2018 annual financial statements of WCP ( the AFS) . See paragraph s 103 to 104 of
my main judgment. In accordance with s 58(2) of the CCA , the AFS: (i) record s the
aggregate of the members’ loans as required by s 58(2)( c)); (ii) is ‘in agreement with
the accounting records’ (s 58(2)( d)); and (iii) ‘ fairly pr esent the state of affairs of the
corporation as at the end of the financial year ’ (s 58(2)( b)). In accordance with s
58(3), plaintiff ‘approved’ the AFS by appending his signature to it .
[20] The law in the CCA gives weight to a member’s signature and approval of
annual financial statements. In accordance with s 58 read with s 56 of the CCA, I
gave due weight to the fact that the plaintiff signed the AFS and its implications for
his approval of the accounting records referred to therein on which the AFS is based.
Therefore, it is wrong for the plaintiff to contend in his application for leave to appeal
(at para 10.4) that I gave ‘undue weight’ to the fact that he signed the 2018 AFS.
Doing the o pposite would violate the relevant provisions of the CCA.
[21] At para 10.4 of his application, the plaintiff contends, as a ground of appeal,
that while I gave undue weight to him signing the AFS, I gave ‘insufficient weight’ to
the plaintiff’s oral test imony ‘that he was a silent partner and that Johan Venter (a
chartered accountant) was responsible for preparing the accounts’. This ground of
appeal lacks merit. By law , the plaintiff’s signature means that he must shoulder legal
responsibility for the AFS’s contents and the implications as to its correctness .
[22] Plaintiff’s counsel argue d that reasonable prospects exist on appeal because,
so he argue d, I ‘disregarded the fact that it was not put to Nico in cross examination
that either of the Venters would testify that he [Nico] did examine the detailed ledger
entries of his loan account in WCP. The main thrust of Mr Bothma’s cross
examination pertaini ng to the detailed ledger entries on which the plaintiff relied in
his evidence in chief was Mr Bothma’s statement to the plaintiff that the ledger
entries concerned do not support the plaintiff’s enrichment claim and actually
support s the defendants’ case (i.e., that it did not loan the R2m to WCP, nor that it
did so at the plaintiff’s expense) .
[23] Paragraph 106 of my main judgment is to the effect that the plaintiff cannot
rely on the ledger entries when it suits hi s case but then escape their implica tions
when the same entries destr oy, or seriously damag e, a key part of his enrichment
claim (i.e., they show that the R2m was loaned by the plaintiff to WCP, and not
loaned by the Trust) . The p laintiff d oes not advance any basis to justify a conclusion
that an appellate court would permit him to use the detailed ledger to prove that he
paid the R2m in 2017 to WCP via CWP (which is essential to be proved for purposes
of his enrichment claim in the light of th e defen dants’ denial thereof ), but then the
appellate court would overlook the fact that the same R2m aggregate payments are
credited in WCP’s books as a loan by the plaintiff to WCP (not by the Trust) and
without any detail which indicate that their natur e and purpose aligns with the
plaintiff’s case as pleaded by him .
[24] The plaintiff’s case is weakened further by email s and other document s relied
on by the plaintiff . His counsel dealt with the email by Mr Umpleby to Mr Harkers of
ABSA (discussed at paragraph s 120 to 123 of my principal judgment ), and clause
3.2 of the deed of sale in relation to WCP’s intended acquisition of certain immovable
property owned by the Trust (see paragraphs 124 to 131 of my main judgment) . Mr
Umpleby informed ABSA that the plaintiff funded his share of the purchase price via
a R2m deposit into his loan account . Clause 3.2 of the deed is to the same effect. Mr
Umpleby’s statement and clause 3 .2 are seriously damaging to the enrichment
claim .
[25] The damage caused is patently clear by reason that t he R2m concerned is
the same R2m for which the plaintiff sues the defendants in his enri chment claim on
the basis that he (the plaintiff) paid the R2m on the defendants’ behalf to WCP and
that the defendants (not the plaintiff) borrowed the R2m to WCP on loan account.
The email by Mr Umpleby was relied on by the plaintiff during his evidence in chief
for two purposes: first, to prove that the R2m paid by him related to his intended
acquisition of a share in the immovable property owned by the Venter Familie Trust.
In other words, the plaintiff relied on Mr Umpleby’s email to prov e the alleged
enrichment by the Trust which its trustees disputed in the pleadings . Secondly, the
email formed part of the background to the plaintiff’s case relatin g to his loan claim.
[26] Mr Umpleby’s statement to Mr Harkers of ABSA and the contents of clause
3.2 align with the accounting records of WCP and the AFS . All this is part of the
tapestry of evidence weaved by Mr Bothma into, in my view, a cogent argument that
an appellate court would not find that Mr Umpleby’s statement and clause 3.2 of the
deed of sale are factually incorrect , or for some other reason is not harmful to
plaintiff’s case .
[27] In the application for leave to appeal, plaintiff’s counsel argue d that ‘[i]t is quite
conceivable that he [Mr Umpleby] formulated the last sentence of the email in
question of his own accord without input from Nico’. When I pointed out that there
are no facts to support this submission, plaintiff’s counsel replied that he raised it as
an arguable point on appeal . As stated above in para graph 5, this is no longer a
basis to grant leave to appeal.
[28] At the leave to appeal hearing, it was argue d that reasonable grounds exist to
believe that an appellate court will view the contents of the ‘red-flags ’ reply letter sent
on behalf of Johan and Sharl Venter as a basis to find that the plaintiff’s enrichment
claim was proved on a prima facie basis so as to overcome the absolution
application . No proper foundation exists for th is ground of the intended appeal . It
overlooks key fact s that show the Venter’s red-flags reply letter does not a dvance the
plaintiff’s case.
[29] The red-flags reply was presented to the plaintiff during his examination in
chief . He was asked to testify about the indication s therein that there were errors in
the account ing entries of WPC . The background to this letter must first be
understood.
[30] As stated in p aragraphs 107 to 108 of my main judgment , the business of
WCP was sold to Deer Ventures (Pty) Ltd (Deer Ventures) . Some months after the
effective date of sale , Mr Garth Cox sent an email in which he red -flagged aspects in
the accounting records of WCP which were provided to Deer Ventures by the plaintiff
and Sharl Venter when they sold its business . Mr Cox was the new accountant for
Deer Ventures and sought an explanation of some aspects in the accounting
records .
[31] The plaintiff testified that he did not reply to the accounting related queries
raised by Mr Garth Cox because he (the plaintiff) was not involved in the capturing of
the accounting records and had no knowledge which would enable him to reply . The
plaintif f testified that he left this matter entirely in the hands of Johan and Sharl
Venter.
[32] This testimony is important . It underscores that the contents of the red-flags
reply sent on behalf of Johan and Sharl Venter is beyond the plaintiff’s knowledge.
Indeed, to his credit , while in the witness box, the plaintiff did not permit himself to be
drawn into the contents of the Venter’s red -flags reply . He insisted that he could not
comment on accounting related matters as they were beyond his knowledge . The
plaintiff did not, and could not, testify to any of this as it fell beyond his knowledge.
Any evidence that the plaintiff would have tendered in regard to the accounting
errors now sought to be relied on by plaintiff’s counsel would have carried no
evidential weight .
[33] For these reasons, plaintiff’s counsel does not rely on testimony given by the
plaintiff relating to the contents of the red -flags reply pertaining to accounting errors.
He relies on the document itself and the ‘facts ’ that they purport to convey. This is
problematic because t he parties agreed to the usual terms as to the status of any
document in the trial bundle . Thus, the facts in the red -flags letter require proof.
[34] To rely on any factual material in the Venter’s red-flag’s, the plaintiff was
required to lead evidence as to its contents. In this context, Mr Garth Cox may have
been useful . He would have been able to testify as to , inter alia, the nature of his
accounting enquiries and the reasons for raising the que ries in the first place; the
Venter’s red-flag’s reply thereto and his understanding thereof from an accounting
perspective ; and his response to th e Venter’s reply (if any at all), including any direct
engagement which he (Garth Cox) may have had with Joha n and/or Sharl Venter in
relation to the accounting errors which the plaintiff now seeks to rely on as the basis
for contending that he proved that a loan of R2m was made by the Trust to WCP .
[35] Although a notice was given under rule 37A(10)( e) of an intention to call Mr
Garth Cox to testify, he was not called as a witness . No sound, rational basis was
advanced as to how an appellate court would, in these circumstances, use the
contents of the Venter’s red -flags letter for the plaintiff’s benefit . I co uld not find any
either, particularly in view of the approved and signed 2018 AFS.
[36] I also agree with Mr Bothma who pointed out, correctly so, that the Venter’s
red-flags letter post -dated t he sale of WCP and the transfer of ownership thereof.
Moreov er, the letter did not, as a matter of fact or law, admit a debt by WCP to the
Venter Familie Trust.
[37] It bears stating that a finding by this court (or an appellate court) that the
Venter’s red flag letter supports the existence of a R2m credit loan debt in favour of
the Trust arising from the facts averred in the POC would give judicial imprimatur ,
even if only on a prima facie basis, to a claim by the Venter Familie Trust against
Deer Ventures for this sum. Such judicial recognition would have serio us legal
ramifications which ought not to be countenanced for various reasons including , but
not limited to, the fact that Deer Ventures is not joined as a party to this suit.
[38] In my principal judgment (at paragraphs 91 to 94) I found that, on a
conspectus of the trial evidence, the defendants did not receive the R2m from the
plaintiff. Based on the facts , I held that the presumption relied on by the plaintiff’s
counsel is inapplicable. The defendants de nied the alleged enrichment and so they
never pleaded a loss of the enrichment . The onus was, therefore, on the plaintiff to
prove the enrichment. He failed to do so.
[39] There was no onus on the defendants to prove a loss of enrichment. No
plausible ba sis was advanced on which I can justifiably sustain an opinion that, on
the facts in the trial record, another court would come to a different conclusion than
that reached by me on the issue of the presumption and its non -applicability here.
[40] As for the plaintiff’s loan claim, a new alternative argument was advanced by
the plaintiff’s counsel in the application for leave to appeal , namely, that if the loan
debt is ‘conditional ’ on the re -advance of monies by ABSA to WCP as found by the
trial court , then there has been a fictional fulfilment there of under the doctrine of
fictional fulfilment. This argument does not hold water on the proved facts of this
case.
[41] Since the doctrine of fictional fulfilment is an afterthought, t he plaintiff did not
plead his case in line with it, nor was evidence led which satisfies all the elements of
this doctrine. For e.g., the POC does not allege conduct on the part of the defendant
trustees that prevented fulfilment of the ‘condition ’; nor is it alleged that they acted
with the intention to frustrate fulfilment of the condition ; nor is it alleged that by virtue
of the trustees’ wilful conduct, the condition is deemed to be fulfilled ; nor is the date
of such deemed fulfilment pleaded. No evidence was led to any of this effect either.
All this is consistent with the plaintiff’s case that there was no ‘condition ’ at play and
that none needed to be satisfied in order for the plaintiff to be entitled to repayment
of the loan .
Costs
[42] For all the reasons advanced above, the plaintiff’s application must fail. There
is no reason why costs should not follow in the defendants’ favour .
Order
[43] In the result, t he plaintiff’s application for leave to appeal is dismissed with
costs, such costs to include counsel’s party -and-party fees on Scale C.
_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT
Appearances
For Plaintiff : Adv J. Rogers
Instructed by: Bicarri Bollo Mariano Inc (Mr B Kurtz)
For Defendant s: Adv. P-S. Bothma
(first to fourth defendants )
Instructed by: Hannes Pretorious Brock & Bryant (Mr H. Pretorious) .