Counter Point Furnishers CC v S M Fraser t/a Salica (896/10) [2012] ZASCA 7 (9 March 2012)

Counter Point Furnishers CC v S M Fraser t/a Salica (896/10) [2012] ZASCA 7 (9 March 2012)

The Supreme Court of Appeal held that the applicant failed to demonstrate that the provisional sentence judgment was appealable. The court found that the applicant's arguments regarding the liquidity of the written agreement and the existence of exceptional circumstances were insufficient. Smit v Scania South Africa (Pty) Ltd acknowledges only a theoretical possibility that exceptional circumstances may render a provisional sentence judgment appealable, but the applicant did not show that this case was materially different from others. The requirements for appealability as set out in Zweni were not satisfied. Accordingly, the application for leave to appeal was dismissed with costs.

Citation
[2012] ZASCA 7
Parties
Applicant: Counter Point Furnishers CC; Respondent: S M Fraser t/a Salica
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 March 2012
Case Number
896/10
Procedural Posture
Leave to Appeal / Application for Leave to Appeal From Provisional Sentence Judgment
Outcome
Application for leave to appeal dismissed with costs.
Judges
Brand, Snyders, Bosielo, Leach, Wallis
Legal Topics
Provisional Sentence, Appealability, Liquid Document, Exceptional Circumstances
Civil Procedure Provisional Sentence Appealability Liquid Document Exceptional Circumstances

Case Brief

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Parties

Counter Point Furnishers CC

Applicant

S M Fraser t/a Salica

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal From Provisional Sentence Judgment

Legal Issues

  1. 1 Whether the provisional sentence judgment granted by the court below is appealable.
  2. 2 Whether the written agreement of sale constitutes a liquid document for purposes of provisional sentence.
  3. 3 Whether exceptional circumstances exist to justify granting leave to appeal.

Ratio Decidendi

The Supreme Court of Appeal held that the applicant failed to demonstrate that the provisional sentence judgment was appealable. The court found that the applicant's arguments regarding the liquidity of the written agreement and the existence of exceptional circumstances were insufficient. Smit v Scania South Africa (Pty) Ltd acknowledges only a theoretical possibility that exceptional circumstances may render a provisional sentence judgment appealable, but the applicant did not show that this case was materially different from others. The requirements for appealability as set out in Zweni were not satisfied. Accordingly, the application for leave to appeal was dismissed with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

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