IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
NOBLESFONTEIN FARM (PTY) LTD
(Registration Number : 2010/004110/07)
and
KONSORTIUM OPERATIONS (PTY) LTD
(Registration Number : 2012/142575/07)
GABRIEL WILLEM ANDRIES VAN HEERDEN
Coram: GROENEWALDT AJ.
Heard: 19 January 2026.
Delivered: 23 January 2026.
Reportable/Not Reportable
Case no: 2025-158762
Applicant
First Respondent
Second Respondent
Summary: This is an application for leave to appeal which is dismissed with costs.
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ORDER
1. Leave to appeal is dismissed.
2. The respondents are ordered to pay the costs of this application jointly and
severally, the one paying the other to be absolved, such costs to be taxed on
scale C.
JUDGMENT
Groenewaldt AJ
INTRODUCTION
[1) This is an application for leave to appeal against the whole of the judgment and
order, granted on 3 October 2025, in which the following order was granted:
"1. That the matter be heard on an urgent basis, and that there be dispensed with
the need for the applicant to adhere strictly to the rules of Court insofar as
notice periods and service are concerned.
2. That the applicant is granted leave to institute and proceed with this application
against the first respondent in terms of section 133( 1 )(b) of the Companies
Act 71 of 2008.
3. That the first respondent is directed to hand over the flock of sheep identified
by way of Annexure EJR1 to the founding affidavit ("the Noblesfontein flock"),
alternatively to hand over as many of the Noblesfontein flock that it may be able
to identify with reference to Noblesfontein tags together with Konsortium pink
tagged ewes in a combined total of 1 551 (one thousand five hundred and fifty
one), alternatively to hand over 1 551 (one thousand five hundred and fifty one)
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Konsortium tagged pink ewes to the applicant within three weeks of the date of
this order.
4. In the event that the first respondent fails to hand over the sheep referred to in
this order, the applicant is granted leave to supplement its papers and apply for
an order authorising the sheriff of this court to enter the premises of the second
respondent (being Farm Dombietersfontein) or wherever else the
Noblesfontein flock or the Konsortium pink tagged ewes may be found within
the northern cape province, and to take whatever steps may be necessary to
take the Noblesfontein flock, or as many of the Noblesfontein flock that they
may be able to be identified with reference to Noblesfontein tags together with
Konsortium pink tagged ewes in a combined total of 1 551 (one thousand five
hundred and fifty one), alternatively, 1 551 (one thousand five hundred and fifty
one) Konsortium tagged pink ewes, into his possession on behalf of the
applicant.
5. That the first and second respondents are ordered to pay the costs of this
application jointly and severally, the one paying the other to be absolved, such
costs to include the costs of senior counsel on Scale C and the costs
occasioned by the postponement of the matter on 19 September 2025."
[2] The Respondents intend applying for leave to appeal on no fewer than six
grounds. In most cases the grounds are merely repetitive. Previously the test
to be applied in an application for leave to appeal was whether there were
reasonable prospects that another court may come to a different conclusion.
The position is now regulated by the Superior Court Act 10 of 2013 ("the Act")
[3] In terms of section 17(1 )(a) of the Superior Courts Act 10 of 2013 ("the Act"),
"( 1) Leave to appeal may only be given when the judge or judges concerned are of the
opinion that-
(a) (i) the appeal would have reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard ... "
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[4] Under the Act, section 17(1)(a)(i) provides for leave to appeal to be given only
where the Judge is of the opinion that the appeal would have a reasonable
prospect of success.
[5] In Mount Chevaux Trust v Goosen 1, Bertelsmann J held that the threshold for
granting leave to appeal has been raised in the Act. The Learned Judge found
that the use of the word "would" indicates a measure of certainty that another
court will differ from the court whose judgment is sought to be appealed against.
[6] The Act has therefore raised the bar for applications for leave to appeal and an
appellant therefore faces a higher and more stringent threshold to navigate.
FIRST GROUND OF APPEAL
[7] The First ground of appeal raised by the Respondents is that the Court a quo
erred in granting final relief where disputes of fact existed.
[8] To this end the Respondents argued that the Court failed to take into account
the question of onus and the fundamental dispute of fact pertaining to the
identity of the property which the Applicant sought to have returned in its initial
application.
[9] The Respondents' contention that the property cannot be identified, is flawed.
The Respondents' answering affidavit confirms that the Applicant's sheep have
been tagged with pink Konsortium ear tags and are therefore identifiable as
such.2 The Respondents further aver that at least some of the Konsortium
tagged sheep are in the possession of the First Respondent3 and further that
the Applicant had retained ownership of the sheep even though it was
rebranded with different tags.
1 (LCC14 R/2014) [2014] JDR 2325.
2 Record 009-15, paragraph 18 of the answering affidavit.
3 Record 009-8, paragraph 6.9 of the answering affidavit.
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[10] Accordingly, the relief was granted on common cause facts and also on the
premise of the Respondents own version.
[11] I am unpersuaded that there is any merit in this ground.
SECOND GROUND OF APPEAL
[12] The Respondents argued that the parties in this matter presented mutually
destructive versions as to whether the Noblesfontein Flock, the return of which
was being claimed, was the subject of the joint venture agreement, whether any
or all of them could be identified, with reference to the original Noblesfontein
ear tags, as claimed by the Applicant.
[13] I have dealt with this ground in the reasoning above as well as in my judgment
especially relating to the legal principle of commixtio.
[14] I am not convinced that factual disputes existed as claimed by the
Respondents.
THIRD GROUND OF APPEAL
[15] The Respondents contend that the Court erred in relying on the prayer for
alternative relief and that the further relief that was claimed could not be housed
under that term. There was also no application by the Respondents for a
postponement of the application in order to deal with the amended relief.
(16] I am satisfied that the amendment resorts under the rubric of further and/or
alternative relief.
FOURTH GROUND OF APPEAL
[17] The fourth ground of appeal is that the sheep which the Applicant was the owner
of cannot be identified.
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[18] The order of the Court is couched in clear language and able of being executed
by the sheriff.
[19] At the risk of repetition, the Respondents own version is that the sheep owned
by the Applicant are tagged with pink Konsortium tags. The grounds raised
herein are therefore baseless.
FIFTH GROUND OF APPEAL
[20] The fifth ground of appeal is that the cancellation or termination fee was not
paid and the return of the sheep was not justified for want of non-compliance.
[21] I find no relevance in this ground in relating to the dispute at hand as a fee in
terms of the agreement between the parties can only be paid if it has been
determined. In this case the quantum of the fee has not yet been determined.
[22] I am unpersuaded that any merit exists in this ground of appeal.
SIXTH GROUND OF APPEAL
[23] The last ground of appeal is that the Court failed to have regard to the
impossible burden which has been placed on the First Respondent and its
Business Rescue Practitioners to comply with the relief. Business rescue
practitioners are not a special category of litigant and should not enjoy special
treatment.
[24] This wide ground of appeal has been dealt with in my judgment and I find no
merit in it.
[25] In conclusion, I find that there are no reasonable prospects that a court of
appeal would come to a different conclusion on any one or more of the grounds
raised and also that there are no compelling reasons why the appeal should be
heard.
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[26] In the result, I make the following order
1. LEAVE TO APPEAL IS DISMISSED.
2. THE RESPONDENTS ARE ORDERED TO PAY THE COSTS OF THIS
APPLICATION JOINTLY AND SEVERALLY, THE ONE PAYING THE
OTHER TO BE ABSOLVED, SUCH COSTS TO BE TAXED ON SCALE
C.
Appearances
For the Applicant:
Instructed by:
"--- ____ .-----GR9'ENEWALDT AJ
J • OGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Adv BJ Manca SC
Potgieter Joubert Inc.
c/o Elliott Maris Inc.
Kimberley.
For the 1st & 2nd Respondents: Adv RGL Stelzner SC
Instructed by: Rufus Dercksen Inc.
c/o Engelsman Magabane Inc.
Kimberley.