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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 014464-23
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
DATE: 17 November 2025
SIGNATURE OF JUDGE:
In the matter between:
KERRIE BOEREWORS (PTY) LTD Applicant
and
BULSKY DEVELOPMENTS (PTY)LTD First Respondent
BWS PROPERTY DEVELOPMENTS PTY LTD Second Respondent
TYRREL OLIVIER Third Respondent
WALKER SENNER INC. Fourth Respondent
JUDGMENT ON LEAVE TO APPEAL
FLATELA J
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Introduction
[1] This is an application for leave to appeal brought by the Fourth Respondent
against the whole judgment and order dated 20 August 2025. For convenience, the
parties will be designated as they are in the main application.
[2] On 20 August 2025, I issued an order against the Fourth Respondent, Walker
Senne Inc., a law firm, for the payment of R2,000,000 plus interest based on the
undertakings made by the Fourth Respondent, specifically on the irrevocable
undertaking given on 28 July 2022 to pay R2,000,000 to the Applicant upon the
registration of immovable property situated at Erf 2[...] X[...] Ext. 2, which occurred
on 23 August 2022. I relied on the reliance theory to hold the Fourth Respondent
liable.
[3] In essence, the Fourth Respondent argues that the Court erred in concluding
that the Applicant relied on the irrevocable undertaking dated 28 July 2022, whereas,
in its replying affidavit, the Applicant stated that the replacement undertakings,
including the one dated 28 July 2022, were considered unacceptable. The Applicant
had requested certain amendments to the 28 July undertaking, and the Fourth
Respondent did not respond to the Applicant’s requests.
[4] The Fourth Respondent further contends that the Court erred in failing to
consider the email from the Applicant’s attorneys dated 22 August 2022, in which the
Applicant’s attorney confirmed that there was no irrevocable undertaking in place
and that, if they do not receive the amended undertaking, the Applicant would seek
the Court’s intervention.
[5] The Fourth Respondent argues that, at the time of the property's registration,
no valid undertaking was in effect, and the Fourth Respondent was not obliged to
make payment to the Applicant. All other grounds of appeal stem from the main
ground. I do not intend to repeat them.
The test for Leave to Appeal
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[6] An application for leave to appeal is regulated by s 17(1) of the Superior
Courts Act 10 of 2013, which provides:
‘(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.’
[7] Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others1 held as
follows:
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 Cronwright & Others 1985 (2) SA 342 (T) at 342H. The
use of the word “would” in the new statutes indicates a measure of
certainty that another Court will differ from the Court whose judgment is
sought to be appealed against.”
[8] Plasket J, in Smith v S 2
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on facts and the law that the Court of Appeal
could reasonably arrive at the conclusion different to that of the Trial Court. In
1 The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2335 (LCC) at para 6.
2 Smith v S 2012 (1) SACR 567, 570 para 7
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order to succeed, therefore, the appellant must convince this Court 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. More is required to
be established than that there is a mere possibility of success; that the case is
arguable on appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.”
[9] Dealing with the threshold for granting the leave to appeal, Dlodlo JA in
Ramakatsa and Others v African National Congress and Another3 had this to say:
“I am mindful of the decisions at high court level debating whether the use of
the word ‘would’ as opposed to ‘could’ possibly means that the threshold for
granting the appeal has been raised. If a reasonable prospect of success is
established, leave to appeal should be granted. Similarly, if there are some
other compelling reasons why the appeal should be heard, leave to appeal
should be granted. The test of reasonable prospects of success postulates a
dispassionate decision based on the facts and the law that a 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 succeeding. A sound rational basis for the conclusion that there are
prospects of success must be shown to exist.4
[10] I have considered the grounds of appeal, the arguments presented by the
Fourth Respondent’s counsel, as well as the counterarguments from the counsel
representing the Applicant opposing the application for leave to appeal.
3 Ramakatsa and Others v African National Congress and Another Case No. 724/2019) [2021] ZASCA
31 (31 March 2021)
31 (31 March 2021)
4 See Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) ; MEC Health, Eastern Cape v Mkhitha
[2016] ZASCA 176 para 17.
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[11] I am of the opinion that a reasonable prospect of success has been
demonstrated. In the circumstances, I hereby issue the following order:
1. The application for leave to appeal is granted to the Full
Court of the Gauteng Division, Pretoria.
2. The costs of this application shall be costs in the Appeal.
FLATELA LULEKA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronically by circulation to the parties and or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the hand-down are deemed to be 10:00 on 17 November 2025.
Appearances
Counsel for the Fourth Respondent: Adv Du Preez SC
Instructed by: Waker Senne Incorporated
Counsel for the Applicant Adv Nieuwoudt
Instructed by: Moss Marsh & Georgiev Attorneys
Date of the Hearing: 6 November 2025
Date of the Judgement: 17 November 2025