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South Africa Ruling

North Gauteng High Court, Pretoria

Cassim NO and Another v Quickstep 684 (Pty) Limited (89103/2019) [2021] ZAGPPHC 625 (16 September 2021)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicants failed to demonstrate reasonable prospects of success for the appeal. The arguments advanced in the notice for leave to appeal were substantially the same as those already considered and rejected in the initial judgment. The point in limine raised by the respondent regarding the non-finality of the order was dismissed, as the court held that the order was indeed final, particularly in relation to locus standi. The court was not persuaded with the requisite measure of certainty that another court would reach a different conclusion. Accordingly, leave to appeal was refused.

Court disposition

Leave to appeal is refused with costs.

Orders

  • The application for leave to appeal is refused with costs.

02

Material facts

Parties

Z Cassim N.O.

Applicant Counsel: Mr Raubenheimer

Another

Applicant Counsel: Mr Raubenheimer

Quickstep 684 (Pty) Limited

Respondent Counsel: Mr van Rooyen

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Opposed Liquidation Motion

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants contend that the appeal has reasonable prospects of success and that there are compelling reasons for the matter to be heard by a full Court or the Supreme Court of Appeal. They rely on the grounds previously set out in their notice for leave to appeal, which mirror arguments already considered in the initial judgment. They argue that the threshold for granting leave to appeal under section 17(1)(a)(i) of the Superior Courts Act is met.
Respondent
The respondent, represented by Mr van Rooyen, raises a point in limine, arguing that the order sought to be appealed is not final in effect and therefore not appealable. The respondent maintains that the applicants lack locus standi and that the prior judgment is clear and conclusive on these issues.

05

Court’s reasoning

  1. 01

    Section 17(1)(a)(i) of the Superior Courts Act

    The threshold for granting leave to appeal under section 17(1)(a)(i) of the Superior Courts Act requires a measure of certainty that another court would come to a different conclusion.

  2. 02

    Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A)

    An order is appealable if it is final in effect and disposes of the substantive rights of the parties.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants failed to demonstrate reasonable prospects of success for the appeal. The arguments advanced in the notice for leave to appeal were substantially the same as those already considered and rejected in the initial judgment. The point in limine raised by the respondent regarding the non-finality of the order was dismissed, as the court held that the order was indeed final, particularly in relation to locus standi. The court was not persuaded with the requisite measure of certainty that another court would reach a different conclusion. Accordingly, leave to appeal was refused.

Obiter and limits

  • The raising of the threshold for leave to appeal under the Superior Courts Act reflects the legislature's intention to limit appeals to cases with genuine prospects of success.
  • The lack of locus standi is dispositive for the applicants and precludes further consideration of the merits.

Court disposition

Leave to appeal is refused with costs.

  • The application for leave to appeal is refused with costs.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Ruling

[2021] ZAGPPHC 625

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG

DIVISION HELD AT PRETORIA

CASE NO: 89103/2019

DATE: 2021.06.28

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between

Z CASSIM N.O. AND ANOTHER

and

QUICKSTEP 684 (PTY) LIMITED

JUDGMENT

EXTEMPORE

HAUPT, AJ: In the leave to appeal of Cassim nomine officio and another versus Quickstep 684 (Pty) Limited, case number 89103/2019 I give the following extempore judgment:

The application for leave pertains to an opposed motion application for the liquidation of Quickstep 684 (Pty) Limited under case number 89103/2019.

I do not intend dealing with the factual matrix and the chronology of the litigation that ensued prior and after the sequestration of Jacqueline Howard who during 2007 obtained shares in Quickstep from the founder and the then director of both Quickstep and Leboa Investments 22 (Pty) Limited.

Both applications for liquidations against Quickstep and Leboa, Leboa being under case number 89101/2019, were issued on the same day by the applicants and argued together before me. I further do not intend summarising the grounds for leave to appeal served on 7 January 2021, as it the notice for leave to appeal sets out the same arguments, in essence, as already considered by me in the judgment granted on 18 December 2020.

The application for leave to appeal is sought in terms of the provisions of section 17(1)(a)(i) of the Superior Courts Act. The applicant contends that the appeal would have a reasonable prospect of success and there is compelling reason why the appeal should be heard by a full Court, alternatively the Supreme Court of Appeal.

The threshold for the granting of leave to appeal has been raised. The authorities regarding the use of the word "would" in the new act is indicative of the measure of certainty that another Court will differ from the Court whose judgment is sought to be appealed against and this does not need any further discussion.

In determining whether there is a reasonable prospect of success that another Court would grant a different order I considered the judgment of 18 December 2020, the order granted, the liquidation application, the heads of argument filed by both Mr Raubenheimer, on behalf of the applicants, and Mr van Rooyen during July 2020 and the subsequent heads that were filed by both counsel who appeared before me this morning, as well as the grounds set out in the notice for leave to appeal.

Mr van Rooyen this morning indicated that the respondents are raising a point in limine. I am not agreement with the point in limine raised by Mr van Rooyen on behalf of the respondents that the order is not appealable as it is not final in its effect. In my view the order is clear in this regard, particularly at prayer 2 and 3 thereof, and the lack of locus standi is the end of the matter for the applicants.

However, nothing turns, in my view, at this stage on the point in limine as I am not persuaded with a measure of certainty that another Court will differ from the judgment dated 18 December 2020. Consequently I am not persuaded that the appeal will have a reasonable prospect of success. In the result the following order is made:

ORDER

The leave to appeal is refused with costs.

HAUPT,

AJ

JUDGE

OF THE HIGH COURT

DATE: 16/9/2021

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A)

Case cited

Superior Courts Act, 10 of 2013

Legislation

Legislation referenced in the available case record.

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