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NHARMURAVATE AJ
INTRODUCTION
[1] This is a n opposed leave to appeal filed by the Applicant who was the
Respondent in the main application based on various grounds cited as per the
notice filed.
[2] The Respondent, who was the Applicant in the main application, opposes the
leave sought on the grounds that it lacks a legal basis and should therefore be
dismissed with costs.
[3] For simplicity, the parties will be referenced as in the main application.
THE LEAVE SOUGHT
[4] Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the Act"), regulates
applications for leave to appeal. The Superior Court Act specifically section 17
has been amended and it currently reads as follows that:
'(1) Leave to appeal may only be given where the judge or judges concerned are of the
opinion that-
(a)(i) the appeal would have a reasonable prospect of success; or
(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) where the decision sought to be appealed does not dispose of all the issues in the
case, the appeal would lead to a just and prompt resolution of the real issues between
the parties.'
[5] The test in an application for leave to appeal prior to the Superior Courts Act was
whether there were reasonable prospects that another court may come to a
different conclusion. However, the amendment of section 17(1) has raised the
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test, as Bertelsmann J, correctly pointed out in The Mont Chevaux Trust v Tina
Goosen &18 Others 2014 JDR 2325 (LCC) at para [6]:
'It is clear that the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new Act. The former test whether leave to
appeal should be granted was a reasonable prospect that another court might
come to a different conclusion, see Van Heerden v Cornwright & Others 1985 (2)
SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a
measure of certainty that another court will differ from the court whose judgment
is sought to be appealed against.'
[6] The Applicant presented six grounds of appeal, summarized as follows:
• The error in concluding that the claim was not extinguished by
prescription.
• The error in failing to consider that the Applicant did not file a replying
affidavit as response to the answer.
• The error in the court's determination that the opposing papers were
inadequately drafted.
• The liability of Edume Game Breeders CC.
• The court's failure to consider that none of the investors received
payment.
• The fact that the answering affidavit remained unchallenged due to the
absence of a reply.
[7] In assessing whether another court may reach a different conclusion, I noted that
the Respondent's answering affidavit in the main application did not address any
allegation made in the Applicant's founding papers. It is established law that the
Respondent must address all material facts alleged in the founding affidavit.
Alternatively, specify which facts are not admitted and to what extent and must
clearly and concisely state all material facts upon which the Respondent relies.
[8] Mr. Vermaak, Counsel for the Respondent, did not provide this court with any
authority permitting the answering affidavit filed in the main application to be
drafted in such a manner. If the Respondent's answer to the Applicant's founding
drafted in such a manner. If the Respondent's answer to the Applicant's founding
affidavit fails to admit or deny, or confess and avoid, allegations in the Applicant's
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affidavit, the court will, for the purposes of the application, accept the Applicant's
allegations as correct.
[9] Further, the Applicant's failure to file a replying affidavit, is discretionary as per
rule 6(5)(e)1. It is established law that the Applicant’s case must be presented in
the founding affidavit and cannot be established in the replying affidavit. The
founding affidavit remains unchallenged by the Respondents. Mr Lazarus,
representing the Applicant, corre ctly argued that the response did not address
any allegations made in the founding papers.
[10] The defense claimed by the Respondent, suggesting the Applicant should have
sued Edume game breeders, is flawed. The contract was between the Applicant
and the Respondent, drafted by the Respondent. There was no provision in the
contract directing as such . Further, the contract's language did not impose
conditions based on other investors' payments . The Applicant's counsel, Mr.
Lazarus, highlighted that the Respondent's defence lacked merit, as the contract
explicitly delineated the responsibilities of the parties involved without provisions
for external dependencies.
[11] The Respondent is not denying that he took and or received the Applicants
R400 000.00.He did not plead that this money was a donation and it is not denied
that repayment was expected by the Applicant at some stage. The Respondents
sole defence is that of prescription. Prescription is interrupted when the debtor
acknowledges the debt be it tacitly or expressly. The Applicants founding papers
deposed as follows that “ the respondent is a family member of mine whom I
requested to make payment to me in terms of the agreement on multiple
occasions the respondent will promise to make payment to me only not to make
payment to me in respect of the matter”. (own emphasis)
[12] The aforementioned is not addressed in the Respondent's answer. This
allegation points to an express acknowledgment of debt, which interrupts
allegation points to an express acknowledgment of debt, which interrupts
prescription. The Respondent's repeated promises to pay constituted an
acknowledgment, effectively interrupting the prescription period every time he
1 Superior Court Practice Erasmus
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promised to pay prior 2020. The Respondent's did not attempt to counter these
assertions, and the argument made was notably insufficient, failing to address
the material allegations with clarity or substantive evidence.
[13] This information indicates that the matter may not have prescribed in April 2019
as argued by the Respondent. The onus was on the Respondent to respond to
the Applicant’s case and failure to do so can be interpreted as an admission of
the allegation. Admission of this allegation simply means that the matter had not
prescribed when the application was issued more so when the two loan
repayments were made by the Respondent.
[14] The answering filed also supports the Applicants averment that he promised to
pay. The Respondent in paragraph 3.18 of the answer deposes that:
“I did at one stage mention to her that I will attempt to pay her an amount of
R100,000, subject there too that I receive payments sufficient money to do so I
also had to take care of my family and my own”.
[15] The terminology employed constitutes a clear acknowledgment of debt, although
the precise timing of this acknowledgment is not specified. The Respondent did
not indicate any intention to donate R100,000.00 to assist her. The usage of such
terminology unequ ivocally signifies acknowledgment. Indeed, throughout the
Respondent's response, the choice of words consistently used is to "pay" rather
than "donate." The term “pay” is defined as to give money in exchange for goods,
services or to discharge a debt2.
[16] I believe that, despite not addressing the interruption of prescription before the
two payments were made, another court is unlikely to reach a different
conclusion. The standard for granting leave to appeal has been heightened.
Consequently, the Respondent's request for leave to appeal must be denied.
2 Oxford Dictionary
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CONCLUSION
[17] I therefore make the following order :
1. Leave to appeal is dismissed with costs.
NHARMURAVATE, AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the Applicant : Mr J Lazarus
Instructed by. : Shapiro and Ledwaba Attorneys
For the Respondent : Adv N Erasmus
Instructed by. : Van Der Cloete Inc
Date of Hearing :03 March 2025
Date of Judgment: 25 June 2025