SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 3036/2019
In the matter between:
R[...] E[...] M[...] APPLICANT
and
M[...] S[...] M[...] FIRST RESPONDENT
MIKA 01 TRADING (PTY) LTD SECOND RESPONDENT
NIKI 001 TRADING (PTY) LTD THIRD RESPONDENT
MIKA SMARTSHOP (PTY) LTD FOURTH RESPONDENT
Coram: Masike AJ
Date Heard: 27 March 2026
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Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail, and released to SAFLII. The date that the judgment is
deemed to be handed down is 7 JULY 2026 at 10h00.
Summary: Application for leave to appeal – requirements of section 17(1)(a) of
the Superior Courts Act 10 of 2013 – grounds for leave to appeal must be set
out succinctly in clear and unambiguous terms – notice of application for leave
to appeal not complying with rule 49(1)(b) , application for leave to appeal may
be dismissed on that ground alone – applicant in application for leave to appeal
must engage the reasoning of the judgment that he wishes to be granted leave to
appeal against and demonstrate misdirections by the court before leave may be
granted.
JUDGMENT
MASIKE AJ
Introduction
[1] Mr R[...] E[...] M[...], the applicant, applies for leave to appeal to the Full
Court of the Division, alternatively the Supreme Court of Appeal, the whole of
the judgment and order made by this Court on 30 September 2025, granting
absolution from the instance with costs. Mrs M[...] S[...] M[...] (the first
respondent), Mika 01 Trading (Pty) Ltd (the second respondent), Niki 001
Trading (Pty) Ltd (the third respondent) and Mika Smartshop (Pty) Ltd (the
fourth respondent) , collectively referred to as the respondents, oppose the
application.
Grounds of appeal
[2] The applicant filed an application for leave to appeal against the
judgment on 20 October 2025. The applicant seeks leave to appeal on the
following grounds formulated as follows:
‘1.1 The court absolved the Respondents from the instance with costs, having
primarily found that the Applicant personally made scanty or no significant
contribution towards the alleged partnership agreement.
1.2 The court, having espoused all essentialia of a partnership agreement as
stipulated by Pothier and having acknowledged that our law recognises the
same, erred in finding that a partnership agreement did not exist between the
parties.
1.3 The court erred in finding that the Plaintiff/ Applicant made no contribution,
or if any, that such contribution was so insignificant as to justify a finding in
favour of the Applicant.
1.4 The court erred in concluding that Lydia Road Trading 004 CC, a legal entity
of which the Applicant is the sole member, was the main contributor rather
than the Applicant personally, disregarding the direct and indirect
contributions made during marriage and after.
1.5 The court further, misdirected itself by rejecting Applicant’s explanation that
the universal partnership was conceived during the subsistence of the
marriage, when both parties, then married in community of property , acquired
Mika 01 and Niki 001 circa October 2012 in the names of the Firs Respondent
as vehicles to conduct Lydia Road’s business in the near future, and which
came to fruition in or around early 2013.
1.6 The court further misdirected itself in holding that the relationship was
commercial in nature and aimed at preservation of the erstwhile Delareyville
and Ganlaagte Build It business as had been the case everything would have
been dissolved and divided during the divorce. The parties consciously and
deliberately intended to form a partnership involving all their assets present
and future as demonstrated by the divorce settlement agreement in terms and
their conduct thereafter.
1.7 The court, furthermore, misdirected itself by failing to distinguish between
registered shareholding in terms of the Companies Act 71 of 2008 and
beneficial shareholding (wherein a “nominee” would exercise the rights on
behalf of the beneficial holder.
1.8 The court further misdirected itself by failing to draw a clear distinction
between treatment of company shares in divorce matters as contemplated in
Section 7(1) of the Divorce Act 70 of 1979 (see De Sousa v Technology
Corporation Management (Pty) Ltd and Another 2018 ZAGPHC 445) vis a vis
registered shareholding or voting in board meetings.
1.9 The court conflated Family law with Company law, resulting in a legally
untenable argument by the First Respondent’s legal representative that the
Applicant was supposed to have had his shares in the companies registered in
the names of the First Respondent only, be registered in his name as well.
1.10 The court, similarly misdirected itself in holding that Lydia Road (and the
shares or members interest therein) was solely owned by the Applicant
notwithstanding the parties marriage regime, despite evidence in the divorce
settlement agreement of 1 August 2013 showing the parties intentionally
elected not to divide certain assets, amongst others, immovable and company
shares, as contemplated by Section 7(1) of the Divorce Act 70 of 1979.
1.11 The court further, erred in finding that the Applicant did not contribute to the
running and management of Lydia Road, Mika 01, Niki 001, Mika
SmartShop, despite clear evidence to the contrary, as the Plaintiff was
extensively involved in the formation, strategic planning and management of
all business and other related aspects of the parties’ and their two minor
children’s lives.
1.12 The court, furthermore, erred in failing to recognize that Mika 01 and Niki 001
were both acquired during the subsistence of the marriage, thus forming joint
assets irrespective of registered shareholding.
1.13 The court further, erred in failing to recognize that the immovable properties,
Erven 1[...] and 4[...] Delareyville, registered in both parties’ names, were
joint assets especially at the time when they were endorsed in 2014 in favour
of the Spar Group and not endorsed/or purportedly transferred into the names
of First Respondent alone (which only occurred upon the properties being
released back from the endorsement by the Spar Group circa late 2018 and
which the Applicant only learnt about during 2019).
1.14 The court further erred in misinterpreting the provisions of section 45bis(A)(1)
of the Deeds Registries Act 47 of 1937 by treating the endorsement for Credit
Guarantee in favour of the Spar Group as a transfer of the Applicant’s
undivided halfshares ownership to the First Respondent,( which transfer would
have required the requisite knowledge and written consent of the Applicant to
be legally effected) contrary to established authority (see Absa Bank Ltd v
LGC and Another 2021 ZAGPPHC and Fischer v Ubomi Ushishi Trading
2018 ZASCA).
1.15 The court, furthermore, misdirected itself by reducing the Applicant’s
contribution to mere transportation of stock “twice or thrice” as his total
contribution to the business over a period extending five years failing to
appreciate the extensive role Applicant played in the formation as well as
strategic planning and management of the communal enterprise as well as
family affairs of the parties.
1.16 The court further, misdirected itself in not recognizing the fact that without the
Applicant’s contribution (by agreeing to his undivided half shares in the two
properties) to secure the R2000 000 (two million rand) Credit Guarantees from
the Spar Group necessary to beef up stocks for both Mika 01 and Niki 001
respectively, constitutes a major personal contribution to the communal
enterprise.
1.17 The court further erred, in failing to recognize that Mika 01 was acquired and
also started operating (circa March 2013) during the subsistence of the
marriage and was entirely founded and financed through the proceeds of
another jointly owned asset, viz. Lydia Road, giving rise to both registered and
beneficial shareholding by both parties in the entities concerned.
1.18 The court further erred, in holding that the Applicant was not party to the
running and management of the affairs of Mika Smart shop (the Fourth
Respondent) as it was initially operated by and under Mika 01 until early
2019, when it was incorporated just after the falling out between the parties, a
fact raised during the Applicant’s testimony in chief.
1.19 Furthermore, the court erred in not taking cognizance the fact that the parties’
finances and financial responsibilities were both intricately and inextricably
intertwined from a business as well as family perspective.
1.20 Demonstrably from the conduct of the parties both during the subsistence of
their marriage and after, there was never a distinction between what is yours or
mine, as all resources were pooled together into one pot for the benefit of both
parties, for instance, payment of debts such as mortgage bonds and motor
vehicles initially by paid for by Lydia Road and later by Mika 001.
1.21 The court, furthermore, erred in downplaying the role played by the Applicant
in affecting major structural alterations to some of the immovable properties in
both Delareyville and Johannesburg respectively, which resulted in huge
enhancement of both their aesthetic as well as market values.
1.22 The parties would from time to time, for instance, jointly choose and purchase
household furniture and other related home items for both properties in
Delareyville as well as Johannesburg from the proceeds of the communal
enterprise.
1.23 Similarly, the Guardianship and custody of the two minor children viz, Mika
and Niki was left intact during and after the divorce, their maintenance and all
needs were catered for from the same joint resources both in Dellareyville ,
Northwest as well as Johannesburg Gauteng Provinces at all material times.
1.24 Furthermore, acquisition of, for instance, the Northcliff property, situated in
the Gauteng Province, which was partly paid by the Applicant through Lydia
Road and subsequently paid for by and registered in the names of First
Respondent circa, July 2018 through the proceeds derived from the communal
enterprise clearly demonstrates the intentions and the extent of the relationship
of the parties.
1.25 Contrary to the findings of the court, that the relationship was no more than a
commercial manouvre (sp) aimed at preservation of Lydia Road’s interests,
the relationship of the parties extended further than romantic entanglements of
husband and wife and clearly demonstrates partners’ conduct.
2. Prospects of success
2.1 The Doctrine of Universal Partnership – South African common law
recognizes a partnership arising from the express or tacit agreement between parties to
contribute to a joint enterprise for mutual benefit. The Applicant’s contributions, both
financial and non-financial, meet the essentialia of such partnership.
2.2 Section 7(1) of the Divorce Act 70 of 1979 – This section empowers courts to
make equitable orders regarding the division of assets in a divorce settlement. The
court a quo failed to give effect to this provision by disregarding all assets jointly
acquired during the marriage, which were carried over continuously into the
cohabitation relationship that extended over a period of more than five.
2.3 The court failed to deal with the provisions of the Deeds Registries Act 47 of
1937, particularly as it relates to section 45 bis (A1) endorsements as well as
acquisition of immovable properties without the other spouse’ knowledge and written
consent, as was the case in this instance.
2.4 In conclusion, the Applicant respectfully submits that the Honourable Court’s
judgment was vitiated by errors of both fact and law. The Applicant submits that
based on the above stated grounds, the appeal would have reasonable prospects of
success.
Wherefore Applicant respectfully submits that therefore reasonable prospects exist
based on compelling reasons and legal principles as pointed out above.’
The test for leave to appeal
[3] Section 17(1) (a) of the Superior Courts Act 10 of 2013 reads as follows:
‘(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;’
[4] The test in an application for leave to appeal is stringent and onerous. The
applicant must satisfy the court that there are reasonable prospects of the appeal
succeeding or there is some other compelling reason why the appeal should be
heard. In Smith v S1 Plasket AJA (as he then was), writing for the court, said the
following at paragraph 7:
‘[7] What the test of reasonable prospects of success postulates is 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 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,
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.’
1 (475/10) [2011] ZASCA 15 (15 March 2011).
[5] In Mont Chevaux Trust v Goosen 2 in paragraph 6, the court said the
following:
‘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 343H. The use of the word "would"
in the new statute indicates a measure of certainty that another court will differ from the court
whose judgment is sought to be appealed against.’
[6] In Ramakatsa and Others v African National Congress and Another 3 at
paragraph 10, Dlodlo JA writing for the court said the following:
‘Turning the focus to the relevant provisions of the Superior Courts Act (the SC Act), leave
to appeal may only be granted where the judges concerned are of the opinion that the appeal
would have a reasonable prospect of success or there are compelling reasons which exist why
the appeal should be heard such as the interests of justice. This Court in Caratco , concerning
the provisions of s 17(1)(a)(ii) of the SC Act pointed out that if the court is unpersuaded that
there are prospects of success, it must still enquire into whether there is a compelling reason
to entertain the appeal. Compelling reason would of course include an important question of
law or a discreet issue of public importance that will have an effect on future disputes.
However, this Court correctly added that ‘but here too the merits remain vitally important and
are often decisive’. 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 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
2 2014 JDR 2325 (LCC).
3 (724/2019) [2021] ZASCA 31 (31 March 2021).
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.’ (footnotes omitted)
The objection by the respondents
[7] Before turning to the merits of the application for leave to appeal. I am
constrained to state that the Notice of Application for Leave to Appeal (notice)
was unduly prolix , with some grounds for leave to appeal repeated on several
occasions in the notice ; the notice was vague in certain aspects, analysing at
times incorrectly certain of the evidence and the findings of this Court, making
certain submissions which were never advanced during trial and making
reference to case law . The grounds for the application for leave to appeal must
be clearly and succinctly set out in clear and unambiguous terms so as to enable
the court and the respondent to be fully informed of the case the applicant seeks
to make out and which the respondent is to meet in opposing the application for
leave to appeal. The subrule is peremptory in this regard.4
[9] The respondents have taken issue with the applicant's notice. It is
submitted on behalf of the respondents that the applicant’s grounds of appeal, as
contained in his notice, are lengthy and difficult to discern, and the respondents
are uncertain as to what grounds the applicant ultimately intends to rely upon. It
is further contended on behalf of the respondents that the applicant’s difficulty
is compounded by his heads of argument, which amount largely to a repletion of
the submissions advanced at trial and a rectification of general principles of law
relating to universal partnerships and the test for absolution from the instance,
without engaging in any meaningful way with the reasoning of the court a quo
or demonstrating any material misdirection in its assessment of the evidence,
particularly in relations to its findings that the applicant failed to establish the
essential requirements of a partnership.
essential requirements of a partnership.
4 Songono v Minister of Law and Order (Songono) 1996 (4) SA 384 (E) at 385I–J.
[10] In Songono, it was held that an application for leave to appeal may be
dismissed because the notice of application for leave to appeal was ‘lengthy and
rambling’. The court, referring to rule 49(1)(b) of the Uniform Rules of Court,
said the following:
‘At the outset the applicant faces a procedural difficulty. Leave to appeal was not requested at
the time of judgment and Rule 49(1)(b) accordingly became of application. It provides that:
“When leave to appeal is required and it has not been requested at the time of the judgment or
order, application for such leave shall be made and the grounds therefor shall be furnished
within 15 days after the date of the order appealed against . . .”
In attempted compliance therewith the applicant filed a document headed 'Application for
leave to appeal', in which he purported to set out the grounds upon which leave to appeal was
to be sought. These so -called 'grounds' constitute a diatribe of some 17 pages criticising the
judgment, analysing (at times incorrectly) certain of the evidence and the findings made,
putting forward certain submissions and quoting various authorities. This lengthy, convoluted
and at times disjointed criticism of the judgment did not clearly and succinctly spell out the
grounds upon which leave to appeal is sought in clear and unambiguous terms - indeed, it
served more to deceive, particularly as, during the course of argument, there were several
points which the applicant's counsel, Mr Bursey, sought to raise which were not indicated in
the document.’5
[11] The court in Songono then went on to say:
‘In my view the lengthy and rambling notice of appeal filed in casu falls woefully short of
what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the
notice but that is not the point - the point is that the notice must clearly set out the grounds
and it is not for the Court to have to analyse a lengthy document in an attempt to establish
and it is not for the Court to have to analyse a lengthy document in an attempt to establish
what grounds the applicant intended to rely upon but did not clearly set out. On this basis
alone the application seems to me to be fatally defective and must be dismissed. ’6 (my
emphasis)
5 Songono at 385B-E.
6 Songono at 386A-B.
[12] In MEC for Health, Eastern Cape v Melane (Melane)7, the view of the
court in Songono was quoted with approval by the Full Court and at paragraph
56, the Full Court said the following:
‘The effect is that where a party fails to comply with the peremptory requirements of Rule 49
(1) (b) inasmuch as they do not set out the grounds of appeal in clear, unambiguous and
succinct terms, the court hearing the application may, on that basis, dismiss the application.’
[13] This view in Songono continues to be followed and has recently been
applied in Kopano Uitkyk Farming Enterprise (Pty) Ltd v National Government
of the Republic of South Africa and Others (3805/2022) [2025] ZAFSHC 51 (27
February 2025) paragraphs 5 and 6.
[14] Rule 49(1)(b) exists not for the purpose of frustrating a would -be
appellant. It exists to ensure that the appellate process is purpose-directed to
identify errors or misdirections where they occur and to marshal the extremely
scarce judicial resources of a higher court to correct them. In the first instance,
this requires careful and considered analysis by the party seeking to determine
whether the judgment or order is tainted by any errors or misdirections.
Secondly, once those errors or misdirections have been identified and succinctly
stated in the notice, the rule serves to afford the respondent an opportunity to
consider whether to abandon or defend the judgment. 8 This Court had to trawl
through the lengthy and convoluted notice to discern the possible reasons for the
grounds of appeal. This should not have been, and on this ground alone, the
application must be dismissed.
Merits of the application for leave to appeal
[15] In the event that I am wrong, I have considered the grounds for leave to
appeal. As I indicated above, some of the grounds in the notice are repeated. In
7 2022 JDR 1642 (ECM).
8 Melane para 62.
the heads of argument filed on behalf of the applicant, the applicant did not
engage with a majority of the grounds of appeal raised in the notice . There was
no indication that the applicant abandoned those grounds of appeal, suggesting
that the applicant still pursued them, but in oral submissions made to this Court,
the majority of the grounds were not addressed, and this Court accepts that the
grounds for leave to appeal, which were not addressed in the heads of argument
and in oral submissions before this Court, have been abandoned.
[16] The grounds for leave to appeal which were addressed in the heads of
argument of the applicant were the following: (a) that this Court erred in finding
that the applicant failed to establish all of the essentials of a universal
partnership; (b) that this Court erred in finding that the contribution of the
applicant was insignificant; and (c) that this Court made a final finding on the
merits at the close of the applicant’s case when considering the application for
absolution from the instance and this goes directly against the threshold set in
Claude Neon Lights (SA) Ltd v Daniel (Clause Neon Lights) 1976 (4) SA 403
(AD).
[17] It appears from the reading of the heads of argument of the applicant, that
the challenge to the judgment of this Court is directed primarily at this Cou rt’s
findings that the applicant failed to establish two essential requirements of a
partnership (i) that the applicant contributed to the alleged universal partnership
and (ii) that the business of the alleged partnership was carried on for the joint
benefit of the parties.
[18] This Court addressed the requirements for a universal partnership, as
reaffirmed in Butters v Mncora .9 (a) Firstly, that each of the parties brings
something into the partnership or binds themselves to bring something into it,
9 (181/2011) [2012] ZASCA 29; 2012 (4) SA 1 (SCA); [2012] 2 All SA 485 (SCA) (28 March 2012) para 11.
whether it be money, labour or skill ; (b) t he second element is that the
partnership business should be carried on for the joint benefit of both parties; (c)
the third is that the object should be to make a profit ; (d) a fourth element
proposed by Pothier, namely, that the partnership contract should be legitimate,
has been discounted by the courts for being common to all contracts.
[19] This Court found that the applicant failed to establish the first and second
essential requirements of a partnership. This Court arrived at this finding after
careful analysis of the applicant's evidence . The applicant has not demonstrated
any material misdirection in the reasoning of this Court in this regard. The
applicant relies on the decision of Pezzutto v Dreyer and Others (Pezutto)
(209/90) [1992] ZASCA 46; 1992 (3) SA 379 (AD); [1992] 2 All SA 81 (A) (27
March 1992) in support of his submission that the contribution to be made by
each partner need not be of the same character, quantity or value.10
[20] The applicant has conveniently ignored what the court in Pezutto said in
paragraph 34 of the judgment. The court said: ‘However, each partner must
contribute something "appreciable", i e , something of commercial value,
although such contribution need not be capable of exact pecuniary assessment
as, eg, where a partner contributes his labour or skill (Pothier: 1.3.9 and 10; B v
The Commissioner of Taxes 1958(1) PH T4 (SR )).’ This Court assessed the
plaintiff's evidence and the alleged contribution he made to the partnership and
found it insignificant. This Court found that the applicant could not equate
delivering stock from Johannesburg on one or two occasions to Delareyville or
attending at the Schweizer – Reneke Build It ‘from time to time’ with the first
respondent and equate this to a contribution in labour and/or skill justifying the
assertion that the applicant was a partner in the business. 11 The applicant, as
10 Pezutto para 33.
11 Para 64 of the judgment.
correctly submitted by counsel for the respondents, has failed to demonstrate
any material misdirection in this Court's reasoning on this aspect.
[21] Regarding the monetary contribution, the evidence indicates it was made
by Lydia Road CC, not the applicant personally. Lydia Road CC was not a party
to the proceedings before this Court, and the applicant never claimed that Lydia
Road CC was a party to the alleged partnership agreement. This finding, as
correctly submitted by counsel for the respondent, has not been challenged by
the applicant.
[22] On the second essential requirement of a partnership. This Court assessed
the evidence of the applicant and referred to the particulars of the claim of the
applicant. This Court found that , from the applicant's evidence, the
establishment of the second respondent and the restructuring of the business
were undertaken for the benefit of Lydia Road CC and to protect its assets,
particularly the Build It stores in Delareyville and Gaanalaagte. This finding
was supported by several features of the evidence of the applicant: (a) the
businesses in question were conducted through separate juristic entities, namely
the second, third and fourth respondents, which had their own banking
arrangements; (b) the first respondent was the controlling party in those entities.
This was conceded by the applicant in cross -examination, and there was no
impediment to the applicant being registered as a shareholder in any of the
entities, this was also conceded by the applicant in cross -examination; (c) the
evidence of the applicant was that the alleged partnership did not have its own
bank account, financial records, or tax returns, which are the usual indicators of
a partnership enterprise conducted for the mutual benefit of its partners; (d) the
evidence of the applicant showed that the applicant retained sole ownership of
immovable properties and rental income which were never treated as
partnership assets or shared with the first respondent.
[23] It is submitted on behalf of the applicant that this Court, in finding that
the applicant failed to satisfy the second requirement of Pothier, is a clear
reflection of final merits determination and goes directly against the threshold
set in Claude Neon Lights. This Court did not resolve disputed factual issues on
the final basis at the stage of the application for absolution from the instance .
This Court assessed the applicant's evidence to determine whether the applicant
had established the essential elements of a partnership. This Court found that
the evidence of the applicant did not demonstrate that the alleged enterprise was
conducted for the joint benefit of the applicant and the first respondent; this
Court was entitled to conclude that the applicant failed to establish a prima facie
case in respect of the second requirement of the essential requirements of a
partnership as formulated by Pothier.
[24] This Court, in granting absolution from the instance, was fully aware of
the Claude Neon Lights test. The court is Claude Neon Lights said the following
as it relates to a test for absolution from the instance at the close of a plaintiff’s
case:
‘…when absolution from the instance is sought at the close of plaintiff's case, the test to be
applied is not whether the evidence led by plaintiff establishes what would finally be required
to be established, but whether there is evidence upon which a Court, applying its mind
reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.’12
[25] The court in Gordon Lloyd Page & Associates v Rivera and Another 13
referring to the test for absolution from the instance , as set out in Claude Neo
Lights, said the following at paragraph 2 of the judgment:
12 Claude Neon Lights at 409G-H.
13 (384/98) [2000] ZASCA 33; 2001 (1) SA 88 (SCA); [2000] 4 All SA 241 (A) (31 August 2000).
‘This implies that a plaintiff has to make out a prima facie case - in the sense that there is
evidence relating to all the elements of the claim - to survive absolution because without such
evidence no court could find for the plaintiff…’
[26] This was the position, with the evidence in the applicant's case before this
Court. The applicant's evidence failed to establish all the elements of the claim.
As I stated above, the applicant failed to establish two essential elements of a
partnership, and without establishing all of the essential elements, the
applicant's case could not survive absolution.
[27] It is submitted by counsel for the respondents that the argument of the
applicant ultimately amounts to no more than a disagreement with this Court’s
evaluation of the evidence. Such disagreement does not establish misdirection
in the application of the test for absolution from the instance. I agree with this
submission.
Conclusion
[28] The applicant has failed to demonstrate that there are reasonable
prospects that another court would come to a different conclusion from that
reached by this Court. The applicant has further failed to demonstrate that there
is some other compelling reason why the appeal should be heard . It follows that
the application for leave to appeal should be refused.
Costs
[29] Costs follow the result, and I have not found any reason to deviate from
this principle. As I indicated above, t he notice was unnecessarily prolix, but the
matter was not complex.
Order
[30] Resultantly, the following order is made.
1. The application for leave to appeal to the Full Court of the
Division, alternatively to the Supreme Court of Appeal, is
dismissed.
2. The applicant is ordered to pay the costs of the application for leave
to appeal on a party and party scale, scale “B”.
_______________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Applicant: Adv DF Makhubele
Instructed by: I Mabunda Attorneys
C/o Van Rooyen Tlhapi Wessels Inc.
Email: info@imabundalaw.co.za
litigation2@vtwinc.co.za
For the First to the
Fourth Respondent: Adv D van Niekerk
Instructed by: Hammond Pole Majola Attorneys
C/o LFS Attorneys Inc.
Email: domw@hammondpole.co.za
louisjnr@lfsinc.co.za