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In re:
OLUF HENDRIK ERICHSEN N.O. FIRST APPLICANT
MICHELLE ALIDA ERICHSEN N.O. SECOND APPLICANT
(In their capacities as trustees of the
Oluf H Erichsen Family Trust)
and
TJP CAPITAL HOLDINGS (PTY) LTD FIRST DEFENDANT
JECSTRUCT (PTY) LTD SECOND DEFENDANT
JACOBUS THEROHN GELDENHUYS THIRD DEFENDANT
________________________________________________________________
JUDGMENT
________________________________________________________________
FOURIE AJ
INTRODUCTION:
[1] The current application is an application for leave to appeal premised on
Sections 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013 ,
together with Uniform Court Rule 49.
[2] The Applicant seeks leave to appeal against the Judgment and Order of
this Court of 21 July 2026.
[3] The Applicant opposes the application for leave to appeal.
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[4] The Applicant has extensively and in 48 pages submitted their grounds
for leave to appeal. Although certain paragraphs might resemble grounds
of appeal, certain other paragraphs seem merely to expand upon the
grounds of appeal, and it needs to be stated that the Notice of Application
for Leave to Appeal as drawn by the Applicant seems to have been drawn
as much with the grounds of appeal as with argument on why the grounds
of appeal ought to succeed.
[5] Applications for leave to appeal are not designed for a rehearing of a
matter and are generally for crisp issues canvassed before the Court a quo,
which is already aware of all the underlying facts and issues between the
respective parties, and are not designed for a re-trial or to raise arguments
and issues that were not previously before the Court.
[6] When the matter was ultimately heard, the application for leave to appeal
and the respective Heads of Argument total an exorbitant number of pages
in excess of 120.
[7] The Applicant’s application for leave to appeal was nearly equal in length
to their Notice of Motion and founding papers in the main application.
APPLICABLE LEGAL PRINCIPLES:
[8] To restate the applicable legal principles pertaining to applications for
leave to appeal would serve no practical purpose. Counsel appearing for
both matters are very senior and have correctly identified the principles
this Court should apply . In so far as the same is necessary, the Court
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repeats the sentiments displayed by the Courts in Ramakatsa,1Smith 2,
Mont Chevaux Trust,3 and Janson 4.
[9] Accordingly, what is required is a meaningful evaluation of whether there
is a sound rationale to conclude that a different Court would reach a
different conclusion than the Court a quo.
[10] Unless there is a compelling reason, such as an important question of law
or a discrete issue of public importance, that necessitates the matter to be
heard by an Appellant Court, the aforesaid threshold has not been met. A
Court will not entertain a matter on appeal simply because a matter is
interesting, technical or of high monetary value.
[11] The law reports are filled with litigious issues in which 50% of litigants
who felt strongly about their case were ultimately found to be incorrect in
the views of the courts dealing with those matters. Appeals are not
designed for circumstances where litigants feel disgruntled with an
outcome they believed they had good prospects of succeeding on when
they initiated the matter. Appeals are designed for circumstances where
the law or the facts were erroneously applied or identified to the degree
that, if the same facts and arguments were presented before a different
Court, a different outcome would have been reached.
GROUNDS FOR LEAVE TO APPEAL:
1 Ramakatsa v African National Congress (unreported) SCA Case Number 274/2019 dated 31 March 2021
2 Smith v S (475/10) [2011] ZASCA 15; 2012 (1) SA CR567 (SCA) (15 March 2011)
3 Mont Chevoux Trust v Goosen 2014 JDR 2325 (LCC)
4 Janson v Ebundu (5767/2023) [2025] ZAMPMBHC 122 (29 September 2025)
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[12] As stated previously, the Court will not repeat the nearly 50 pages of
grounds for leave to appeal as stated by the Applicant. To do so would
serve no practical purpose.
[13] The essence of the application for leave to appeal is simply whether a
different Court would find that good cause has not been shown under the
auspices of Section 3(2) of the Arbitration Act, 42 of 1965, for the setting
aside of the arbitration agreement.
[14] The Court held initially that to determine that good cause has been shown,
the Court has a wide mandate to evaluate all the relevant facts of the
matter, and when evaluating all the relevant facts of the matter to make a
determination on whether good cause has been shown, to deal with the
matter in any other way would not constitute the Court’s discretion being
exercised judicially.
[15] For purposes of the current enquiry, some distinction needs to be made in
respect of whether the discretion of the Court was a discretion in the wide
sense or a discretion in the narrow sense. For purposes hereof, the Court
believes that the discretion of the Court to determine whether good cause
has been established for purposes of Section 3(2) of the Arbitration Act is
a discretion in the wide sense but, after the Court had found that good
cause was indeed shown, the election by the Court to set aside the
arbitration agreement is one exercised in the narrow sense. The Court
accordingly believes that these two issues, as they might find application
in the current matter, might be dealt with at separate stages of the enquiry
in a different fashion. The Applicant not only complains that good cause
has not been shown but also states that the Court's election to set aside the
arbitration agreement was incorrect.
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[16] Initially, the Court took a holistic approach to evaluate the parties' actions,
the delay caused by those actions, how the parties' actions were perceived,
and all other objective facts. The Court's evaluation of these facts together
led it to find that good cause has been shown. The Court reevaluated all
submissions made by the parties to consider whether the Court would
truly believe that a different Court, faced with the same facts and
arguments, would reach a different conclusion. The Court is not
persuaded that a different Court would come to a different conclusion on
whether or not good cause has been shown.
[17] The only remaining issue is for the Court to evaluate whether there is
some other compelling reason within the contemplation of
Section 17(1)(a)(ii) of the Act to refer the matter to be heard on Appeal.
[18] The proposition was tabled by the Applicant that the matter is of some
general importance to guide litigants on whether their conduct in the cause
of arbitration or then repudiation , if it leads to that , in itself constitutes
good cause. The difficulty with the aforesaid proposition is that good
cause is not a principle designed to bind parties in future matters.
Although it can serve as a guideline, each matter is to be evaluated on its
own unique set of facts.
[19] The principles relating to what ultimately constitutes good cause are
settled legal principles, and the importance of the matter is importance
inter partes rather than of general public importance. This Court is not
persuaded that an Appeal Court ought to be burdened with hearing issues
that arose from the current matter.
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