REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE : ¥eS /NO
OF INTEREST TO THE JUDGES: ¥eS/NO
RE VISED .
::::::::::::::::::::::::: ~
DATE 18 November 2025 SIGNATURE ............................. .
In the matter between:
NICO VLADIMER KUCER
-and-
DE KUILE BOERDERY CC
Delivered 18 November 2025
CASE NUMBER: 7573/2020
APPLICANT / PLAINTIFF IN
MAIN ACTION
RESPONDENT /DE FENDANT
IN MAIN ACTION
This judgme nt wa s hand ed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
Date heard
Coram
BRESLERAJ:
2
for hand down of the judgment is deemed to be 18 November
2025 at 10:00 am.
3 November 2025
Bresler AJ
JUDGMENT
[1] The Applicant (Plaintiff in the main action) applies for Leave to Appeal against the
judgment and order handed down by this Court on the 19th of February 2025 in
terms whereof the Applicant's claim against the Respondent (Defendant in the main
action). The grounds as per the Application for Leave to Appeal appears from the
extensive Application for Leave to Appeal and includes inter a/ia:
1.1 Failing to consider that the dictum in Muhlman v Muhlman 1 pertaining to the
test to be applied in determining if a tacit agreement came into effect was
overturned and substituted on appeal;
1 1981 (4) SA 632 (W )
3
1.2 Failing to consider the matter solely on the premise of a tacit partnership
agreement whereas the Plaintiff testified that there was an express
partnership agreement;
[2] An application for leave to appeal is governed by section 17(1) of the Superior
Courts Act, Act 10 of 2013. Section 17(1 )(a) provides:
'17 Leave to appeal
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.'
[3] In MEC Health, Eastern Cape v Mkhitha2 the Supreme Court of Appeal said the
following (reference to other authorities omitted):
'[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17(1 )(a) of the Superior Courts Act 10 of 2013 makes it clear
that leave to appeal may only be given where the judge concerned is of the
2 MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016)
4
opinion that the appeal would have a reasonable prospect of success; or there
is some other compelling reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal."
[4] Leave should therefore be granted as there is a reasonable prospect of success on
appeal, alternatively there is a compelling reason for the appeal to be heard in so
far as the judgment relies on case law that was overturned on appeal (to w it
Muhlman v Muhlman 3). It is furthermore evident that the Plaintiff did in fact testify
to an express agreement, as opposed to a tacit agreement, rendering the findings
pertaining to the tacit agreement potentially flawed.
Order:
[5] In the result the following order is made :
5.1 Leave to appeal is granted to the Full Court of the Limpopo Division
of the High Court of South Africa;
3 1981 (4) SA 632 (W )
5
5.2 Costs of this application will be costs in the appeal.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv. D Mara is
Kern and Partners
Johannesburg
clive@kernlaw.co.za
reception@kernlaw.co.za
nicola@kernlaw.co.za
ktp6@ktpsa.co.za
Adv. B Stevens
Machobane Kriel Inc
Pretoria
Litigasie1@machobanekriel .corn
akruss@machobanekriel.com