IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 19438/2024
21657/2024
7107/2023
In the matter between:
ILSE JOUBERT APPLICANT
and
JOHANNES STEPHANUS SPAMER
CARINA MYBURG (née SPAMER)
MAGARETHA SWANEPOEL (née
SPAMER)
ELITHA VAN DYK (née SPAMER)
JOHANNES STEPHANUS SPAMER N.O.
(in his capacity as trustee for the time being in
THE SPAMER FAMILY TRUST)
CARINA MYBURG (née SPAMER) N.O.
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
(in her capacity as trustee for the time being in
THE SPAMER FAMILY TRUST)
MAGARETHA SWANEPOEL (née
SPAMER) N.O.
(in her capacity as trustee for the time being in
THE SPAMER FAMILY TRUST)
ELITHA VAN DYK (née SPAMER) N.O.
(in her capacity as trustee for the time being in
THE SPAMER FAMILY TRUST)
LINDISTAR (PTY) LTD
THE COMMISSIONER OF THE
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION
INT COMPANY AND SECRETERIAL
SERVICES (PTY) LTD
KIM-LIZA GIBBS
SEVENTH RESPONDENT
EIGHTH RESPONDENT
NINTH RESPONDENT
TENTH RESPONDENT
ELEVENTH RESPONDENT
TWELFTH RESPONDENT
Neutral citation: Joubert v Spamer and Others (Case no 19438/2024,
21657/2024 and 7107/2023) [2025] ZAWCHC (21 October
2025)
Coram: NUKU J
Heard: 30 September 2025
Delivered: 21 October 2025
Summary: Practice – Application for leave to appeal on the basis that the Court
erred in failing to consider causes of action that it was not required to consider –
the Court did not err in determining only the issues submitted to it for
determination – the appeal would not have reasonable prospects of success – no
compelling reason why the appeal should be heard – application for leave to appeal
refused with costs.
ORDER
The application for leave to appeal is refused, and the applicant is directed to pay
the party and party costs, including costs of two counsel, where so employed, and
such costs shall be on scale B.
JUDGMENT
Nuku J:
[1] This is an application for leave to appeal the judgment and orders issued by
this Court on 19 August 2025, which dismissed the three applications filed by the
applicant under case numbers 7107/2023, 19438/2024, and 21653/2024. The
applicant also seeks leave to appeal the adverse cost orders made under case
numbers 7107/2024 and 19438/2024. The application is opposed by the first to
ninth respondents as well as the twelfth respondent (respondents).
[2] The judgment the applicant seeks to appeal did not address the merits of
each party’s case as outlined in the affidavits filed. This was at the applicant's
request, whose counsel urged the Court to disregard the pleadings and decide the
matter based on settlement offers exchanged between the applicant and the first
respondent.
[3] The first respondent made an offer to settle by proposing to buy the
applicant’s shares in the ninth respondent on certain t erms. However, these terms
were not acceptable to the applicant. The applicant then made a settlement offer to
buy the first respondent’s shares in the ninth respondent, but those terms were also
not acceptable to the first respondent.
[4] Based on the excha nges between the parties mentioned above, counsel for
the applicant argued that the only issue the court needed to resolve was the terms
on which the applicant would buy the first respondent’s shares in the ninth
respondent. He submitted that the court has the power to determine the terms of the
buy-out based on principles established in Robson v Theron1 (Robson).
[5] The court then proceeded to decide the matter based on the applicant's
argument. Her main difficulty, however, was that she had not provided any
evidence to establish the terms of the buy -out. The inevitable result was that the
application could not succeed, and it was dismissed accordingly.
[6] In what can only be described as a complete reversal, the applicant now
seeks to appeal the judgment because the Court erred by failing to consider the
merits of her case as outlined in the affidavits filed . Relying on authorities
concerning the Court's power to decide legal issues apparent on the papers on its
own accord2, counsel for the applicant argued that nothing prevents the applicant
from reviving the case she had abandoned.
1 1978 (1) SA 841 (A).
2 Nedbank v Mendelow NO 2013 (6) SA 130 (SCA) at paras [17] and [18] and CUSA v Tao Ying Metal Industries
and Others 2009 (2) SA 204 (CC) at para [68].
[7] Counsel for the applicant, relying on the decision of the Constitutional Court
in Alexkor3, argued that a litigant who had abandoned a legal contention in a
lower court is entitled to revive that contention on appeal.
[8] Finally, relying on authorities dealing with a new point or cause of action on
appeal4, counsel for the applicant argued that it is permissible for a party to raise a
new point of law on appeal for the first time , provided that it does not result in
unfairness to the other party, does not introduce new factual issues, and does not
cause prejudice.
[9] It was argued on behalf of the respondents that the duty of an appellate
tribunal is to determine whether the lower court came to a correct conclusion
“…on the facts submitted to it…” 5. The applicant, having abandoned reliance on
her pleaded case, cannot now contend that the court erred in disregarding the case
she had requested the court to disregard.
[10] It was further argued that the applicant’s approach, if permitted, would
create an unacceptable situation where litigants could ‘bank’ or secure an appeal
by deliberately abandoning causes of action before a lower court, and then
claiming that those causes of action have reasonable prospects of success on
appeal.
[11] It was furthe r argued that the test on leave to appeal cannot be applied to
causes of action that were not brought before the court for adjudication. This is
3 Alexkor Ltd and Another v Richtersveld Community and Others 2004 (5) SA 460 (CC) at paras [42]-[44].
4 Barkhuizen v Napier 2007 (5) SA 323 (CC) at paras [39] and [40], Moroka v Premier of the Free State Province
and Others (295/20) [2022] ZASCA 34 (31 March 2022) at para [36] and Ndebele & Another v Industrial
Development Corporation of South Africa and Others (21687/2021) [2023] ZAGPJHC 822 (unreported).
5 Cole v Government of the Union of South Africa 1910 AD 263 at 272 as referenced in Paddock Motors (Pty) Ltd v
Igesund 1976 (3) SA 16 (A) at 23C-D.
because no error can result from a lower court failing to decide issues that it is not
required to resolve.
[12] Counsel for the respondents argued that the applicant ’s reliance on
authorities regarding the court’s power to determine issues on its own initiative is
completely misplaced for several reasons. First, it conflates points of law and
causes of action . Second, Nedbank v Mendelow NO 6 is premised upon the
fundamental principle that the point of law must be raised and can only be applied
‘… where the facts to which those principles apply are squarely raised in the
papers before the Court (and that were before the High Court) …’ . Thirdly, the
same principle was applied in Cuninghame and Another v First Ready
Development 249 7and CUSA v Tao Ying Metal Industries 8 with the former
decision referencing the latter where it was stated that: ‘ Where a point of law is
apparent on the papers, but the common approach of the parties proceeds on a
wrong perception of what the law is, a court is not only entitled, but is in fact
obliged, mero motu, to raise the point of law and require the parties to deal
therewith. Otherwise , the result would be a dec ision premised on an incorrect
application of the law. That would infringe the principle of legality .’9 It was
submitted that these decisions are distinguishable from the applicant’s case as the
latter does not involve a wrong perception of the law , but rather the abandonment
of the very foundation of the applicant’s pleaded case.
[13] Counsel for the respondents also distinguished Alexkor by asserting that the
Constitutional Court's ruling states that an abandoned legal contention can only be
revived on appeal if it is included in the pleadings and evidence, and its
6 2013 (6) SA 130 (SCA).
7 2010 (5) SA 325 (SCA) at para [30].
8 2009 (2) SA 204 (CC).
9 At para [67].
reconsideration does not cause unfairness to the other party. In other wor ds, the
legal contention must not introduce new factual issues. In the present case, the
applicant not only abandoned a legal contention but also the entire cause of action.
[14] Finally, it was argued that Barkhuizen v Napier10 and Paddock Motors11 are
also distinguishable because they involved situations where the parties presented
the Court with a stated case, and all that the Court was required to do was to decide
a point of law based on the agreed facts. In the present case, it was submitted that
the facts are highly disputed, and this is beside the point that the applicant
requested the Court to disregard the facts.
[15] The authorities relied on by the applicant are indeed distinguishable based
on the argument advanced by the respondents. This is because, as the respondents
argue, appellate tribunals are required to assess the correctness of lower court
decisions based on the cases submitted to those courts for determination.
[16] To allow a party to abandon it s entire cause of action only to permit it to
advance the court’s acquiescence to such abandonment as a ground of appeal does
not accord with the provisions of section 17(1)(a) of the Superior Courts Act 10 of
2013 (Superior Courts Act) which provides that
‘Leave to appeal may only be granted where the judge or judges concerned are of the opinion
that (a)(i) the appeal would have a reasonable prospect of success ; or (b) there is some other
compelling reason why the appeal should be heard, including conflicting judgments on the
matter under consideration.’
10 2007 (5) SA 323 (CC).
11 1976 (3) SA 16 (A)
[17] The other problem with the applicant’s approach is that it would require the
appellate court to evaluate the merits of the applicant’s claim based on the
affidavits filed, acting like a court of first instance. This is not the purpose of an
appellate court, and adopting such an approach would undermine the entire judicial
hierarchy. It is easy to imagine a si tuation where the applicant, if granted leave to
appeal on this basis, chooses not to present all her causes of action to the appellate
court and then later uses this as grounds for further appeals. In my opinion, such a
situation is untenable.
[18] Having considered all of the above, my conclusion is that the applicant has
not satisfied the requirements for granting leave to appeal as outlined in s 17(1)(a)
and (b) of the Superior Courts Act. This is because, in my opinion, the appeal
would not have a reasonab le prospect of success , nor are there any compelling
reasons that justify hearing the appeal. Leave to appeal will accordingly be refused,
and costs are to follow the result.
Order
[19] As a result, the following order shall issue:
The application for leave to appeal is refused , and the applicant is directed to pay
the party and party costs, including costs of two counsel, where so employed, and
such costs shall be on scale B.
_____________________________
LG NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicant: RS Van Der Reit, SC and HN De Wet
Instructed by: Berhard van der Hoven Attorneys, Pretoria
Care of: Bisset Boehmke McBlain Attorneys, Cape Town
For respondent: G Walters SC and A Brouwer
Instructed by: Spamer Triebel Inc, Bellville
C/O: Norman, Wink Stephens, Cape Town.