IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Not reportable
Case No: 2025-151382
In the matter between:
ABL FARMING (PTY) LTD Plaintiff
and
ML FRUITS (PTY) LTD Defendant
Coram: Anderssen AJ
Heard: 6 July 2026
Delivered: Electronically on 7 August 2026
Summary: Application for leave to appeal – no reasonable prospects of success
– no other compelling reason – application refused
ORDER
1. The application for leave to appeal is refused.
2. The defendant is ordered to pay the costs including the costs of counsel
on Scale B.
JUDGMENT
Anderssen AJ:
INTRODUCTION
[1] The defendant (“ML Fruits”) seeks leave to appeal to the full court against
the whole of the judgment and the order as delivered on 22 May 2026,
which granted summary judgment in favour of the plaintiff (“ABL”).
[2] In terms of section 17(1) of the Superior Courts Act 1 I must consider
whether the appeal would have a reasonable prospect of success or
whether there is some other compelling reason why the appeal should be
heard.
[3] ML Fruits seek leave to appeal as it avers that the court erred in finding
that it did not disclose a bona fide defence within the meaning of Rule
32(3)(b). The errors in findings that ML Fruits complain about are:
[3.1] firstly, the finding that mora had not been claimed or established;
[3.2] secondly, the finding that ML Fruits had not shown the lost profits
to be a natural consequence of ABL’s breach of the agreement;
[3.3] thirdly, the finding that ML Fruits elected not to answer all the
allegations to the effect that there were no discussions or
requests made about the delivery of guavas;
1 10 of 2013.
[3.4] fourthly, the finding that ML Fruit’s approach to formulating the
relief sought in reconvention fairly led to the conclusion that its
defence is not bona fide;
[3.5] fifthly, the finding that the claim in reconvention may be one
where the issues of liability and quantum are interlinked in such a
manner that the one cannot be decided without the other;
[3.6] sixthly, the finding or the doubt expressed that an unquantified
counterclaim cannot give rise to a bona fide defence;
[3.7] seventhly, the court’s reliance on the cases of BKB Limited ,
Masana Petroleum and Van den Berg Attorneys as these are
distinguishable;
[3.8] eightly, the finding that ML Fruits was no longer willing to adhere
to its agreement with ABL to purchase all of the guavas
harvested by ABL.
DISCUSSION
[4] During the hearing Mr Quinn took me to the Fiat judgment2 and submitted
that it was not seriously disputed by ABL that there was an agreement
between the parties t hat ML Fruits would buy guavas from ABL . ML Fruits
had pleaded that the express, tacit and/or implied terms of the agreement
were that ABL would sell to ML Fruits all of the tomatoes and guavas
harvested by ABL during the 2025 harvest season and that ML Fruits
would make payment for the tomatoes and guavas at their prevailing
2 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T).
market price, weekly in arrears. ABL failed to deliver the guavas and was
thus in breach of the agreement . The repudiation of the agreement that
ABL relied on, is ‘an incomplete thought’ as ABL neither cancelled the
agreement nor claimed specific performance. Mr Quinn pointed out that
pleadings can be amended and that ML Fruits’ failure to amend (after they
were alerted to the difficulties in the plea and counterclaim by ABL in the
exception that was noted and the application for summary judgment) must
be weighed up against ML Fruit’s entitlement to the relief sought.
[5] As regards the counterclaim, Mr Quinn submitted that it is permissible to
claim for damages in a two -stage enquiry. The counterclaim is formulated,
firstly, in the form o f a declarator – that ABL is liable to ML Fruits to pay
damages because of the failure to deliver guavas – and, secondly, for the
determination of the quantum of damages at a postponed date. I agree
with Mr Quinn that this approach is permissible .3 What I expressed doubt
about in my judgment, is whether such a counterclaim can defeat a
summary judgment application because it may not meet the requirement
that a defence must be disclosed ‘fully’. The question is whether this
approach is sufficient to ward off a claim for summary judgment . Mr
Wessels argue d that it is not because the defence lacks the necessary
detail and, as pointed out in the exception, the current formulation of the
defence in the plea and counterclaim is problematic.
[6] I was of the view that the facts relied upon by the deponent of ML Fruits’
answering affidavit made it clear that the counterclaim – arising from the
3 Cadac (Pty) Ltd v Weber -Stephen Products Company and Others (530/09) [2010] ZASCA
105 (16 September 2010); [2011] 1 All SA 343 (SCA); 2011 (3) SA 570 (SCA); 2010 BIP 307
(SCA) at para [13].
failure to deliver guavas – may very well be a claim where the issues of
liability and quantum are so interlinked that a court would be unable to
decide the one without the other .4 This is the risk inherent to the two-stage
enquiry, as the Supreme Court of Appeal warned . The Cadac-case
confirms that a plaintiff who wishes to have the issue of liability decided
before embarking on quantification, may claim a declaratory order to the
effect that the defendant is liable, and pray for an order that the
quantification stand over for later adjudication . It is not authority that a
counterclaim in these terms will defeat a claim for summary judgment. The
approach taken by ML Fruits was inherently risky: Rule 32(3)(b) requires a
defendant to disclose ‘fully’ the nature and grounds of the defence and the
material facts relied upon therefor.
[7] As to the complaints in the notice to the application for leave to appeal , I
note the following:
[8] Obligations imposed by a contract are meant to be performed, and, if they
are not performed at all, the party on whom the duty of performance lay , is
said to have committed a breach of contract or to be in mora. Time is an
element common to all contracts and to decide the consequences of failure
to perform a contractual obligation timeously, our law employs the concept
of mora. My judgment dealt with the lack of necessary averments arising
from mora ex re and mora ex persona. I am not persuaded that there are
any prospects that a different court would reach a different conclusion.
[9] The complaints against my findings – such as that ML Fruits elected not to
4 The complaint against the finding that ML Fruits had not shown the lost profits to be a natural
consequence of ABL’s breach of the agreement cannot be upheld. The complaint misunderstands
the finding made.
answer all the allegations (to the effect that there were no discussions or
requests made about the delivery of guavas) or that ML Fruit’s approach to
formulating the relief sought in reconvention fairly led to the conclusion that
its defence is not bona fide – do not demonstrate a reasonable prospect of
success on appeal.
[10] Leave to appeal may only be granted where the judge concerned is 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 . The Supreme Court of Appeal, with
reference to 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 , was of the view that , if a
reasonable prospect of success is established, leave to appeal should be
granted.5 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, ML
Fruits needs 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.6
5 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA
31 (31 March 2021) at para [10].
6 See MEC Health, Eastern Cape v Mkhitha [2016] ZASCA 176 at para [17].
[11] My judgment highlighted the risk inherent in the approach taken by ML
Fruits – which resulted in my finding that they did not meet the requirement
of ‘fully’ as set by Rule 32 (3)(b), which regulates what is required from a
defendant in its opposing affidavit. I illustrated this with reference to certain
cases. I agree that the cases of BKB Limited , Masana Petroleum and
Van den Berg Attorneys are distinguishable, but I do not agree that my
reliance on these cases were misplaced. The cases served as illustrations
of when courts granted summary judgment applications because the
counterclaims did not meet the ‘fully’ requirement. ML Fruits’ answering
affidavit fell short of what was expected of them. The problems regarding
mora, repudiation , and the contradictions between the pleaded
counterclaim and its other admissions in the plea were pointed out to them
by ABL but they did not address these. Thus ML Fruits did not meet its
obligation, when raising the counterclaim as a bona fide defence to a
summary judgment application , to provide full particularity of the material
facts upon which that claim is based.
[12] Although Mr Quinn did not seek to rely on a compelling reason, I must
nevertheless consider whether, if the requirement for reasonable prospects
of success are not met, leave to appeal may still be granted under section
17(1)(a)(ii). If there is some other compelling reason why the appeal
should be heard , such as conflicting judgments on the legal matter under
consideration, an important question of law or matters of unique public
interest, I could nevertheless grant leave to appeal . I do not believe that
there are any such reasons.
[13] In reaching this conclusion, I take guidance from the Supreme Court of
Appeal in the Majola-case:7
[25] It is necessary to say something regarding the grant of leave to appeal in
cases in which summary judgment has been granted. The purpose of summary
judgment is to ‘enable a plaintiff with a clear case to obtain swift enforcement of a
claim against a defendant who has no real defence to that claim’. It is a procedure
that is intended ‘to prevent sham defences from defeating the rights of parties by
delay, and at the same time causing great loss to plaintiffs who were
endeavouring to enforce their rights’. If a court hearing an application for
summary judgment is satisfied that a defendant has no bona fide defence to a
plaintiff’s claim and grants summary judgment as a consequence, it should be
slow thereafter to grant leave to appeal, lest it undermine the very purpose of the
procedure. This case is a good example. If summary judgment had been refused
nearly two years ago, and leave to defend had been granted, the trial would
probably have been completed by now.
[14] I was satisfied that ML Fruits has no bona fide defence to ABL’s claim and
granted summary judgment as a consequence . I am not persuaded that
there are any reasonable prospects of success on appeal. The summary
judgment did not close the door on ML Fruits’ counterclaim. Granting leave
to appeal now would undermine the very purpose of the summary
judgment procedure.
[15] Costs must follow the cause. The application for leave to appeal is refused
and the order recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant / defendant: Adv C Quinn
Instructed by Boy Louw Inc
For the respondent / plaintiff: Adv L N Wessels
Instructed by: Boshoff Brönn Smit
7 Majola v Nitro Securitisation 1 (Pty) Ltd (567/10) [2011] ZASCA 180 (30 September 2011);
2012 (1) SA 226 (SCA); [2012] 1 All SA 628 (SCA).