IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 18777/18
In the matter between:
PABAR (PTY) LTD PLAINTIFF
and
AZOTEQ (PTY) LTD DEFENDANT
Coram: JONKER AJ
Heard: 6 May 2026
Delivered: 8 May 2026
Summary: Application for leave to appeal - s 17 of the Superior Courts Act 10 of
2013 - applicable test - whether reasonable prospect of success on appeal -
whether some other compelling reason - challenges to f actual findings made
after trial - deference owed to trial court - application dismissed with costs.
ORDER
1. The application for leave to appeal is dismissed.
2. The plaintiff is ordered to pay the costs of the application on scale C,
including the costs of two counsel where so employed.
JUDGMENT
JONKER AJ:
Introduction
[1] This is an application for leave to appeal against the judgment and order
of this Court delivered on 18 March 2026. The parties are referred to herein as in
the main judgment.
[2] Pabar seeks leave to appeal to the Full Court of this Division. The grounds
of appeal are set out in the application. They traverse, in substance, the same
ground that was canvassed at trial.
[3] At the hearing, counsel did not address each of the grounds individually
but identified what he submitted were the principal points. He accepted that the
legal principles applied in the main judgment had been correctly identified, and
that the methodology adopted by the court was not the subject of criticism. The
challenge advanced was, as he stated , directed at the application of settled
principles to the facts of this matter. He further indicated that leave, if granted,
was sought to the Full Court of this Division rather than to the Supreme court of
Appeal.
The applicable test
[4] Section 17(1) of the Superior Courts Act 10 of 2013 provides that leave to
appeal may be given only where the judge or judges concerned are of the
opinion that the appeal would have a reasonable prospect of success, or that
there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.1
[5] An applicant for leave must satisfy the court that there is a reasonable
prospect - that is, a realistic chance , of success on appeal. A mere possibility of
success, an arguable case, or a case that is not hopeless, will not suffice.2
[6] In Dexgroup3, Wallis JA observed that the requirement to obtain leave to
appeal is ‘a valuable tool in ensuring that scarce judicial resources are not spent
on appeals that lack merit.’ That gatekeeping function is integral to the scheme of
s 17.
[7] In Four Wheel Drive 4, the Supreme Court of Appeal emphasised that
leave should be granted only where there is a sound, rational basis for the
conclusion that there are prospects of success on appeal.
1Section 17(1) of the Superior Courts Act 10 of 2013.
2Mont Chevaux Trust v Tina Goosen [2014] JDR 2325 (LCC) at para 6; MEC for Health, Eastern
Cape v Mkhitha [2016] ZASCA 176 paras 16-17; Notshokovu v S [2016] ZASCA 112 para 2.
3Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and others 2013 (6) SA 520 (SCA) at
para 24.
4Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) para 34.
[8] The compelling -reason ground in s 17(1)(a)(ii) is engaged where, for
example, a substantial point of law arises, where there are conflicting judgments
on the question, where the matter is of great public importance, or whe re the
interests of justice otherwise require that the appeal be heard. I do not believe
this ground is engaged in this matter.
[9] An application for leave is not an opportunity to re -argue the merits. It
requires the party seeking leave to identify, with precision, the respect or
respects in which the trial court is alleged to have erred and to demonstrate that
another court would, o n those grounds, come to a different conclusion. In R v
Dhlumayo5, the Appellate Division laid down what has become the locus
classicus on the function of a court of appeal. The appellate court does not retry
the case. It does not hear the witnesses afres h. It does not substitute its own
discretion for that of the trial court merely because, sitting in the trial judge's
chair, it might have come to a different conclusion. Its function is altogether more
circumscribed: to determine whether the judgment unde r attack discloses a
misdirection, whether of fact or of law, sufficient to warrant interference. It is not
enough that another court might possibly take a different view. Nor does an
appeal lie against the reasoning of a judgment; it lies against the orde r or
substantive outcome.6
The grounds advanced
[10] The grounds advanced by Pabar may, for convenience, be grouped under
three broad heads:
[11] First, grounds challenging the primary factual finding that no binding
agreement was concluded between the parties on 14 March 2017 in the terms
5 R v Dhlumayo and Another 1948 (2) SA 677 (A).
6 B[…] E[…] v N[…] T[…] and Others (505/2025) [2026] ZASCA 25 (11 March 2026) at para 11.
ultimately pleaded in the amended particulars of claim. These include challenges
to the court's evaluation of t he probabilities, to its treatment of the parties'
subsequent conduct, and to the inferences drawn from the contemporaneous
correspondence.
[12] Secondly, grounds challenging the court's evaluation of particular pieces
of evidence: the so -called ‘concession’ said to have been made by Dr Bruwer in
cross-examination, the construction given to the phrase ’your proposed
agreement’ in the email of 10 March 2017, and the absence of an account in
respect of the Parow pilot store.
[13] Thirdly, grounds challenging certain legal conclusions said to flow from the
court's findings, including the relevance of the absence of a written recordal, the
materiality of the distinction between the T5 and T6 tubes, the alleged mutual
destructiveness of Azoteq's defences, and the scope o f the December 2025
amendment.
[14] The grounds advanced by Pabar predominantly challenge findings of fact
made by th e court following a four -day trial during which the two principal
witnesses, Mr Barbaglia and Dr Bruwer, were observed and assessed. The
settled principle is that an appellate court will not lightly interfere with such
findings. The trial court's advantage of having seen and heard the witnesses, of
having absorbed the atmosphere of the trial, and of having been steeped in the
documentary record, is one to which appellate courts traditionally accord
considerable deference.
[15] In AM7, the Supreme Court of Appeal reiterated that the findings of a trial
court are overturned only where there has been a clear misdirection, or where
the findings are clearly erroneous. The principle applies with particular force
where credibility and reliab ility are in issue. The same decision underscores that
7AM and another v MEC for Health, Western Cape (1258/2018) [2020] ZASCA 89.
direct evidence is to be preferred to reconstruction after the event , a
consideration of particular significance in the present matter, as it was at trial.
[16] An appellate court enjoys somewhat greater l atitude in reviewing
inferences and the assessment of probabilities. But where, as here, the
probabilities have been considered alongside the credibility and reliability of the
witnesses in the manner contemplated by Stellenbosch Farmers' Winery Group
Ltd v Martell et Cie8, an appellate court will be slow to substitute its own view.
[17] These considerations form the backdrop against which each of Pabar's
grounds must be assessed.
The primary factual finding
[18] Pabar's central contention is that the court ought to have found that a
binding agreement was concluded between the parties on 14 March 2017 in the
terms set out in the amended particulars of claim. The factual conclusion to the
contrary, which forms the foundation of the judgment, was reached after a careful
evaluation of the credibility and reliability of the two witnesses and a
comprehensive consideration of the probabilities, applying the analytical
framework prescribed by Stellenbosch Farmers' Winery and Pitout.9
[19] The court found, in summary, that: (a) Mr Barbaglia's evidence, while not
dishonest, bore the hallmarks of reconstruction. Material aspects of his version
had shifted across successive amendments to the pleaded case, and his oral
evidence at trial revealed inconsistencies as to the chronology and location of the
alleged agreement; (b) Dr Bruwer's evidence, including his candid admission that
he had no independent recollection of the substance of the Brewery meeting,
8Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA
11 (SCA) para 5.
9Pitout v North Cape Livestock Co -operative Ltd 1977 (4) SA 842 (A); CGEE Alsthom
Equipments et Enterprises Electriques, South African Division v GKN Sankey (Pty) Ltd 1987 (1)
SA 81 (A).
was largely consistent with the contemporaneous documentation generated by
him at the time; (c) The probabilities, viewed as a whole and on the evidence as
a whole, did not establish that a binding agreement had been concluded in March
2017 on the terms alleged. The strong pointer a gainst a concluded contract
identified in CGEE Alsthom , namely the existence of unresolved material
matters, was not displaced by sufficiently cogent factors pointing the other way.
[20] The challenges advanced in the application do not identify any material
misdirection in the application of the controlling framework. That is consistent
with the position taken at the hearing that the legal principles and methodology
adopted by the court w ere correctly identified. The argument is, in substance,
that the court ought to have weighed the evidence differently. That is not a basis
on which an appellate court would interfere with findings of this character.
[21] Pabar places particular reliance on th e evidence said to support an
inference that an agreement was concluded: the September 2017 email referring
to ‘our agreed structure ’, the joint ordering of 1 000 T6 tubes in June 2017, the
joint branding sticker arrangement of 31 March 2017, and the Decem ber 2017
email contemplating a similar arrangement on a further potential transaction.
Each of these was specifically engaged with in the judgment. The court accepted
that they were the strongest features of Pabar's case but found that they were
equally, and on the evidence more naturally, explained as the conduct of a party
who confidently anticipated the formalisation of an arrangement and was
pressing forward to make that outcome inevitable. They fell short of the
unequivocal manifestation of intention to be immediately bound that the objective
test requires.
[22] That conclusion was supported by, among other things: (a) Mr Barbaglia's
own contemporaneous email of 10 March 2017 referring to ‘your proposed
own contemporaneous email of 10 March 2017 referring to ‘your proposed
agreement’, language that, on the objective test, is m ore naturally read as a
reference to a draft still under negotiation than to a concluded contract; (b) Dr
Bruwer's persistent presentation of further draft cooperation agreements after the
date on which the agreement was alleged to have been concluded, inc luding the
August 2017 third draft, which expressly continued to treat Pep as an open
opportunity, and the October 2017 email proposing revised profit -sharing terms;
(c) the absence of any contemporaneous written confirmation of an agreement
having been reached at the Brewery meeting, in circumstances where Dr
Bruwer's established practice was to record material understandings in follow -up
correspondence; and (d) the parties' conduct in relation to the Parow pilot store,
which, on Pabar's own pleaded case, would have constituted the first transaction
caught by the alleged 60:40 obligation. Pabar did not account, and offered no
satisfactory explanation for not having done so. Equally significant , a point
pressed by counsel for Azoteq at the hearing, it did not, on its side, conduct itself
as if bound by the alleged obligation either: it did not invoice Pabar, it did not
claim 40% from Pabar, and it issued the invoice to Lightmart. The conduct of
both parties in relation to the first transaction said to have fallen within the
alleged agreement is, on any view, more consistent with there having been no
such agreement than with one having existed.
[23] There is, in my view, no reasonable prospect that another court would
come to a different conclusion.
The ame ndment of 23 February 2026 and paragraph 26 of the main
judgment
[24] Pabar contends that paragraph 26 of the main judgment misstates the
scope of the amendment of 23 February 2026, in particular by suggesting that
the amendment reintroduced a broader location for the conclusion of the
agreement. The criticism is properly directe d at one sentence in paragraph 26.
The amendment of 23 February 2026 was, on closer examination, confined to
the alteration of the 60:40 split: previously pleaded as 60:40 in favour of Pabar, it
was amended to provide for a 60:40 split in favour of whichev er party undertook
the work or made the sale.
[25] Read in that limited sense, the criticism in the application has some force.
It does not, however, assist Pabar. The paragraph cannot be read in isolation. It
must be read with preceding paragraphs 24 and 25, and with the broader finding
at paragraph 44 that Mr Barbaglia's evidence was marked by reconstruction and
that material aspects shifted over time when measured against the pleadings.
The point made in those paragraphs , that there were three successive ite rations
of the case, the cumulative effect of which was a marked shift in the location,
sequence and substantive terms relied on , does not depend on the precise
scope of the February 2026 amendment. It is grounded in the pleadings as a
whole. Even if parag raph 26, read in isolation, may be understood to overstate
the reach of the February 2026 amendment, the underlying conclusion is
unaffected. An appeal lies against the order, not against an isolated proposition
in the reasoning.
The so-called concession by Dr Bruwer
[26] Pabar places considerable weight on what is said to have been a
concession by Dr Bruwer in cross -examination that an agreement had been
reached. The exchange in question was addressed in the main judgment. The
court treated Dr Bruwer's initial response as a concession concerning the
operation of the pricing formula only, that, had a Pep order been received in
March 2017, the email of 10 March 2017 would have provided the operative
pricing mechanism. When the prop osition was reformulated in legal terms a
moment later, Dr Bruwer rejected it immediately and unequivocally, stating: ‘Oh
no, not at all.’
[27] As counsel for Azoteq submitted at the hearing, the second proposition
put, that ‘what transpired in March was an ag reement’, was not phrased as a
question, and was framed in legal rather than factual terms. The court observed
the resulting confusion, and Dr Bruwer did not initially apprehend that he was
expected to respond. Once the proposition was reformulated, his re sponse was
clear and unequivocal. The contention that the retraction was elicited only after
intervention by counsel does not, in my view, accord with the exchange as it
unfolded at trial. As an evaluative judgment made in the course of the trial, with
the benefit of having observed the witness, this is the kind of finding to which an
appellate court would accord particular deference. There is no reasonable
prospect that a different conclusion would be reached on appeal.
The interpretation of ‘your proposed agreement’
[28] The interpretation given in the judgment to Mr Barbaglia's reference, in his
email of 10 March 2017, to ‘your proposed agreement ’ was reached by
application of the principles in Endumeni10: the language used, in its proper
context, against the relevant background. Pabar's preferred construction , that the
phrase referred only to the pricing methodology rather than to the legal status of
the arrangement, was canvassed in argument at trial and considered. It remains
an availabl e reading, but it is not, on the objective test, the more natural one.
There is no reasonable prospect that an appellate court would prefer it.
The material terms outstanding and written recordal grounds
[29] Pabar contends that the court erred in finding tha t material terms
remained outstanding at the alleged date of conclusion, and erred in concluding
that a written recordal was required for a binding agreement to have come into
existence. Both contentions, with respect, mischaracterise the judgment.
10Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA
593 (SCA) para 18.
[30] As to the first, the court did not hold that Azoteq had pleaded any specific
material term that had to be agreed before a contract could come into existence.
The unresolved status of various matters , including warranties, insurance,
product liability and letters of authority , was treated as a probability factor under
Pitout and CGEE Alsthom : namely that the existence of outstanding material
matters constitutes a strong pointer against a binding contra ct having been
concluded, in the absence of cogent factors pointing the other way. That is a
recognised analytical tool, and its application does not depend on the matter
having been pleaded as part of the defence. To the extent that the application
proceeds on the premise that the court found, as a substantive legal conclusion,
that the absence of agreement on any specific material term precluded the
formation of a contract, the premise is incorrect. The point was a probabilities
point, weighed in the balance, not a substantive legal threshold.
[31] As to the second, the court did not find that a written recordal was a
precondition of a binding agreement. The judgment expressly disavowed any
such finding.11 The absence of any contemporaneous written confirmatio n of an
agreement having been reached at the Brewery meeting, against the backdrop of
Dr Bruwer's established practice of recording material understandings in writing,
was simply one factor among several in the probabilities analysis. It was not, and
was n ot intended to be, a substantive legal requirement for the existence of a
contract.
The essentialia ground
[32] Pabar contends that the court ought to have found that the parties had
reached consensus on the essentialia of the alleged agreement. The contention
falls to be distinguished from the probabilities -based reliance on outstanding
material matters. Consensus on the essentialia is the legal threshold for the
formation of a binding contract; the existence of unresolved material matters
formation of a binding contract; the existence of unresolved material matters
11para 63 of main judgment.
operates, by contrast, as a probability factor under Pitout and CGEE Alsthom .
Both points were engaged with in the judgment. The matters left outstanding at
the alleged date of conclusion, including the basis on which the 60:40 split was to
be calculated, the parties' respective accounting and reporting obligations,
warranties, insurance and product liability, and letters of authority , were not, on
the court's assessment, peripheral details of an otherwise concluded bargain.
They went to the substance of the bargain itself. On that finding, consensus on
the essentialia was not, on the probabilities, established. There is no reasonable
prospect that an appellate court would come to a different view.
The T5/T6 ground
[33] Pabar submits that the court erred in finding that the T6 tubes did not form
part of any agreement concluded in March 2017. It contends that the T6 was
simply a different version of the standard T5 tube and that the agreement,
properly construed, encompassed both. The judgment, however, did not turn on
a finding that the T6 was, in some technological sense, a different product from
the T5. It turned on the absence of any contemporaneous c ommunication
extending the March 2017 pricing arrangement to a proprietary product (the T6
with Crystal drive technology) that did not exist in its eventual form at the time of
the alleged conclusion of the contract, and on the absence of any commercial
justification for the 60:40 split in circumstances where Pabar performed none of
the metalwork, assembly or testing contemplated in the draft cooperation
agreements that underpinned the proposed split. That analysis is not displaced
by the technical similarity between the two products.
The joint branding sticker and the related email grounds
[34] Pabar contends that the joint branding sticker arrangement of 31 March
2017, and an email exchange said to contemplate a similar ad hoc arrangement
on a further potential transaction, ought to have led the court to infer that a
binding agreement had been c oncluded in the terms pleaded. As to the email,
the reference appears in the application to the December 2017 exchange but in
argument was treated as the September 2017 exchange. Nothing turns on the
choice for present purposes, since the analysis applies in the same way to either.
Each of these features was considered as part of the conduct relied on by Pabar
in support of its case on the probabilities. They were found to be equally, and on
the evidence more naturally, explained as the conduct of parties m oving forward
in confident anticipation of the formalisation of an arrangement still under
negotiation, rather than as the implementation of a binding contract already
concluded. The point was canvassed in argument and the analysis in the
judgment was not, in my view, displaced. That conclusion accords with the
Endumeni approach to the contemporaneous documentary record and with the
evaluation of the probabilities as a whole. There is no reasonable prospect that
an appellate court would draw a different inf erence from these particular features
against the broader evidential canvas.
The mutually destructive defences ground
[35] Pabar contends that Azoteq advanced mutually destructive versions in its
plea: a denial of the existence of any agreement, alternatively a contention that
any such agreement was repudiated and cancelled, alternatively cancelled by
mutual consent in January 2018. This is not, as a m atter of either pleading or
substantive law, a mutually destructive contradiction. Conditional alternative
defences are an established and unobjectionable feature of South African
pleading practice. The alternative defence was raised expressly on the
pleading practice. The alternative defence was raised expressly on the
assumption, not conceded, that the primary defence failed. The pursuit of the
alternative in evidence does not impair the primary defence, and the
documentary correspondence of January 2018 is, in any event, equally
consistent with the primary defence: namely t hat no agreement was ever
reached, and that whatever negotiations had been ongoing were brought to an
end by the parties' communications of that month.
The remaining grounds
[36] I have considered each of the remaining grounds advanced in the
application. None of them, individually or cumulatively, displaces the conclusion
that the appeal would have no reasonable prospect of success. Most are
restatements, in different form, of the principal contention that the court ought to
have weighed the evidence diffe rently. Others, including the contention that the
court erred both in attaching weight to the parties' conduct in relation to the
Parow pilot store and in admitting the correspondence dealing with that store, fall
away once the underlying findings of fact are accepted. As to admissibility in
particular, the correspondence in question concerned a transaction which, on
Pabar's own pleaded case, would have been the first to fall within the alleged
60:40 obligation, and was plainly relevant to the assessment of the parties'
conduct after the alleged date of conclusion.
[37] It is trite that a n appeal lies against the order of a court, not against its
reasoning.12 Even if it were to be accepted that the court had, in some respect,
erred in its reasoning on a particular evidential point - and save for the limited
qualification recorded in respect of paragraph 26 of the main judgment, no such
error has, in my view, been demonstrated - that would not, of itself, justify the
grant of leave where the order, considered as a whole, is correct.
12Western Johannesburg Rent Board and Another v Ursula Mansion (Pty) Ltd 1948 (3) SA 353
(A) at 354-355.
Compelling reason
[38] Pabar has not advanced any other compelling reason within the
contemplation of s 17(1)(a)(ii). The position is reinforced by the indication given
at the hearing that the legal principles applied by the court were correctly
identified and that the methodology adopted was not the subject of criticism.
There is, on Pabar's own framing, n o novel point of law in issue. The legal
principles applied are well-established and the authorities relied upon are settled.
There are no conflicting judgments on the questions in issue; on the contrary, the
legal framework adopted finds express support i n, among others, the Full Bench
decision of this Division in Jehring referred to in the judgment. The matter is not
one of public importance. Nothing in the interests of justice requires that the
appeal be heard.
Costs
[39] Azoteq has been successful in opposing the application and seeks costs
on scale C, including the costs of two counsel where so employed. There is no
reason to depart from the general rule that costs follow the result.
Order
[40] In the result, the following order is made:
1. The application for leave to appeal is dismissed.
2. The plaintiff is ordered to pay the costs of the application on scale
C, including the costs of two counsel where so employed.
_____________________________
EM JONKER
ACTING JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff: JR Peter SC with RJ Bouwer
Instructed by: Martini-Patlansky Attorneys, Johannesburg.
For Defendant: RGL Stelzner SC with JR Whitaker
Instructed by: Basson-Blackburn Inc, Paarl.