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[2026] ZAGPJHC 867
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Der Zucker Backer (Pty) Ltd v Parker and Another (Leave to Appeal) (2024/136898) [2026] ZAGPJHC 867 (31 July 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2024-136898
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
In
the matter between:
DER
ZUCKER BACKER (PTY) LTD
Applicant / Plaintiff
And
SHANI
RAE INKACHI PARKER
First Respondent / Defendant
RONALD
BENTON PARKER
Second Respondent / Defendant
JUDGMENT
– LEAVE TO APPEAL
DREYER
AJ
:
[1]
This is an application by the
Respondents for leave to appeal against the whole of the judgment and
order granted by this Court
on 28 April 2026. In terms of the order
summary judgment was granted in favour of the Applicant against the
Respondents.
The
test for leave to appeal
[2]
The test for leave to appeal is set out
in Section 17(1) of the Superior Courts Act 10 of 2013 (“the
Act”). In terms
of Section 17(1)(a) leave to appeal may only be
given where the judge of judges concerned are of the opinion that:
(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 the matter of
MEC
for Health, Eastern Cape v Mkhitha and
Another
[2016] ZASCA 176
the Supreme Court of Appeal stated:
[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]
In the matter of
Notshokovu
v State
[2016] ZASCA 112
the Supreme
Court of Appeal stated that “
An
appellant, on the other hand, faces a higher and stringent threshold
in terms of the Act compared to the provisions of the repealed
Supreme Court Act 59 of 1959.”
The
Respondents’ grounds of appeal
[5]
The Respondents’ grounds for leave
to appeal is set out in the Respondents’ Application for Leave
to Appeal dated 9
June 2026.
[6]
The judgment contains the reasons for
the order handed down on 28 April 2026, and this Court need not
elaborate in this regard.
[7]
This Court however deems it necessary to
deal with the following grounds raised by the Respondents namely:
7.1
the Court erred in taking cognisance of and allowing the
impermissible attaching of further evidence to the founding affidavit
of the summary judgment application, which did not present in the
particulars of claim.
7.2
the Court failed to give proper consideration to the fact that the
Applicant had pleaded already in the particulars of
claim as well as
in the founding affidavit that at all times the First Respondent aced
in her capacity as director of the Applicant,
however, that such
relief was sought against the First Respondent in her personal
capacity in the absence of a finding in terms
of
Section 77
of the
Companies Act 68 of 2008
.
[8]
Rule 32(2)(b)
requires that the
Plaintiff shall explain briefly why the defence as pleaded does not
raise any issue for trial.
[9]
In the matter of
Absa
Bank Limited v Mashinini NO.
2020
JDR 0124 (GP) the following was stated:
”
3.11.
The Rule as amended clearly did not envisage a mini-trial by the
production of extensive facta probantia, but where, as in
the present
instance that which would have been a bare or bold denial can be
refuted or, in the imprecise words of the amended
Rule, “briefly”
be explained by way of an annexed document or documents, that should
in my view be allowed. To not
do so would be to revert to the
unsatisfactory position which was in existence prior to the amended
Rule.”
See
also:
Absa Bank Ltd v Saunderson
2024 (4) SA 552
(NCK) at
paras 35 – 37 and
Peikko South Africa Ltd v JCO Construction
(Pty) Ltd
2025 JDR 3973 (GJ)
[10]
The evidence provided by the Applicant
in the founding affidavit in this Court’s view serves only to
support the contentions
by the Applicant as to why the defences as
pleaded by the Respondents do not raise issues for trial.
[11]
On a perusal of the particulars of claim
and the founding affidavit in support of summary judgment it is
evident that same does
not contain any averment by the Applicant that
at all material times the First Respondent acted in her capacity as
director of
the Applicant, as contended for by the Respondents.
Conclusion
[12]
This Court has considered the grounds of
appeal raised by the Respondents. Having done so, this Court is not
persuaded that the
Respondents have satisfied the test for leave to
appeal as set out in Section 17(1) of the Act.
[13]
The Respondents have failed to
demonstrate that there is a reasonable prospect of success on appeal,
or that there are compelling
reasons why the appeal should be heard.
[14]
This Court therefore makes the following
order:
1.
The application for leave to appeal is
dismissed.
2.
The Respondents are to pay the party and
party costs of the application on scale B.
E
DREYER
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and by being uploaded
to CaseLines. The date for hand down is deemed to be 31 July 2026.
Appearances:
Appearance
for Applicant:
Adv. XT van Niekerk
Instructed
by:
Lacante Attorneys Inc.
Appearance
for Respondents:
Adv. JA Steyn
Instructed
by:
Wright Rose-Innes Inc.
Date
of hearing:
16 July 2026
Date
of Judgment:
31 July 2026