Burger N.O v Nel and Others (1744/2024) [2024] ZANWHC 217 (28 August 2024)

Burger N.O v Nel and Others (1744/2024) [2024] ZANWHC 217 (28 August 2024)

The court found that the Supreme Court of Appeal had already determined the legal position regarding the right of pre-emption and reciprocity in the dispute between the parties. The applicant failed to establish a prima facie right to interim relief or a well-grounded apprehension of irreparable harm. The facts have not changed since the SCA judgment, and no sound, rational basis exists to conclude that there is a reasonable prospect of success on appeal. No other compelling reason was advanced for the appeal to be heard. Accordingly, the application for leave to appeal is dismissed, and costs are awarded to the respondents.

Citation
[2024] ZANWHC 217
Parties
Applicant: Pieter Hendrik Jacobus Burger N.O; Respondent: Deon Nel; Respondent: Fluxmans Incorporated Attorneys; Respondent: Registrar of Deeds, Pretoria; Respondent: Acting Sheriff of the High Court for Ottosdal, Felicia Devonia Laing; Respondent: Master of the High Court Mahikeng; Respondent: Brenda De Beer Gagiano NO (in her representative capacity as duly authorised trustee of the Brenda De Beer Gagiano Trust, IT 8175/01); Respondent: Pieter Hendrik Jacobus Burger N.O
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
28 August 2024
Case Number
1744/2024
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Order Dated 28 May 2024
Outcome
Application for leave to appeal dismissed with costs.
Judges
FMM Reid
Legal Topics
Right of Pre Emption, Specific Performance, Interim Interdict, Leave to Appeal, Reciprocity in Contract
Land and Property Civil Procedure Right of Pre Emption Specific Performance Interim Interdict Leave to Appeal Reciprocity in Contract

Case Brief

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Parties

Pieter Hendrik Jacobus Burger N.O

Applicant

Deon Nel

Respondent

Fluxmans Incorporated Attorneys

Respondent

Registrar of Deeds, Pretoria

Respondent

Acting Sheriff of the High Court for Ottosdal, Felicia Devonia Laing

Respondent

Master of the High Court Mahikeng

Respondent

Brenda De Beer Gagiano NO (in her representative capacity as duly authorised trustee of the Brenda De Beer Gagiano Trust, IT 8175/01)

Respondent

Pieter Hendrik Jacobus Burger N.O

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment and Order Dated 28 May 2024

Legal Issues

  1. 1 Whether the applicant has established a prima facie right to interim interdictory relief pending the outcome of the main action.
  2. 2 Whether there is a well-grounded apprehension of irreparable harm if interim relief is not granted.
  3. 3 Whether the court's discretion was correctly exercised in refusing interim interdictory relief.

Ratio Decidendi

The court found that the Supreme Court of Appeal had already determined the legal position regarding the right of pre-emption and reciprocity in the dispute between the parties. The applicant failed to establish a prima facie right to interim relief or a well-grounded apprehension of irreparable harm. The facts have not changed since the SCA judgment, and no sound, rational basis exists to conclude that there is a reasonable prospect of success on appeal. No other compelling reason was advanced for the appeal to be heard. Accordingly, the application for leave to appeal is dismissed, and costs are awarded to the respondents.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the respondents’ costs in the application for leave to appeal, on Scale C, party and party basis.