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South Africa Judgment

North Gauteng High Court, Pretoria

Gouws v Ariano 424 CC and Another (33104/2021) [2022] ZAGPPHC 628 (29 July 2022)

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Source document

01

Holding and result

The court found that, given the acrimonious divorce and the possibility that the respondent CC is being used as an alter ego by the applicant's estranged wife, there exists a reasonable prospect that another court may reach a different conclusion regarding the eviction. The arguments presented and the facts of the case justify granting leave to appeal.

Court disposition

Leave to appeal granted to the applicant to the full court of the Gauteng Division, Pretoria.

Orders

  • Leave to appeal is granted to the applicant to the full court of the Gauteng Division, Pretoria.
  • Costs of the application will be costs in the appeal.
  • Should the appellant fail to prosecute the appeal within the Rules of Court, the appellant will be liable for the costs of this application.

02

Material facts

Parties

Jan Gerhardus Christoffel Gouws

Applicant Counsel: M Haskins SC

Ariano 424 CC

Respondent Counsel: S Mentz

City of Tshwane Metropolitan Municipality

Respondent

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal From Eviction Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the eviction order was improperly granted, arguing that the respondent CC is being used by his estranged wife as a vehicle to further the divorce dispute and that she is effectively the alter ego of the company. He maintained that he should not be evicted from the former matrimonial home under these circumstances.
Respondent
The respondent argued that the applicant no longer has any legal right to occupy the property, as ownership has passed to the CC, and the estranged wife no longer resides in the home. The respondent maintained that the eviction was lawful and justified under the circumstances.

05

Court’s reasoning

  1. 01

    Section 17 of the Superior Courts Act, 10 of 2013

    Leave to appeal may be granted if there is a reasonable prospect that another court may come to a different conclusion.

06

Ratio, limits and disposition

Ratio decidendi

The court found that, given the acrimonious divorce and the possibility that the respondent CC is being used as an alter ego by the applicant's estranged wife, there exists a reasonable prospect that another court may reach a different conclusion regarding the eviction. The arguments presented and the facts of the case justify granting leave to appeal.

Obiter and limits

  • The ongoing divorce proceedings between the parties have complicated the property dispute and may influence the use of corporate vehicles in litigation.
  • The court refrained from making findings on the merits of the eviction, focusing solely on the prospects of success on appeal.

Court disposition

Leave to appeal granted to the applicant to the full court of the Gauteng Division, Pretoria.

  • Leave to appeal is granted to the applicant to the full court of the Gauteng Division, Pretoria.
  • Costs of the application will be costs in the appeal.
  • Should the appellant fail to prosecute the appeal within the Rules of Court, the appellant will be liable for the costs of this application.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2022] ZAGPPHC 628

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 33104/2021

REPORTABLE:

NO

OF INTEREST TO OTHER JUDGES: NO

REVISED

29 JULY 2022

In the matter between:

JAN GERHARDUS CHRISTOFFEL GOUWS Applicant

ID [....]

(First Respondent a quo)

and

ARIANO 424 CC First Respondent

(Applicant a quo)

CITY OF TSHWANE METROPOLITAN Second

Respondent a quo

MUNICIPALITY

IN RE:

ARIANO 424 CC

Applicant

JAN GERHARDUS CHRISTOFFEL GOUWS First

Respondent

CITY OF TSHWANE METROPOLITAN Second

Respondent

JUDGMENT:

APPLICATION

FOR LEAVE

TO APPEAL

[1] This application was brought a quo by the First Respondent to evict the Applicant from what was previously the matrimonial home on the small holdings now belonging to the First Respondent. The Applicant and the sole member of the First Respondent are embroiled in a rather acrimonious divorce action with no prospect of finalization in the near future.

[2] The Applicant was the previous owner of the property where the matrimonial home is situated which was occupied by himself and the now sole owner of the First Respondent. He remained living in the home even after his estranged wife moved out into one of the chalets on the property. Without dwelling into the detail it is safe to say the parties are no longer on the other's friendship list.

[3] The crux of the application a quo was whether the First Respondent could have the Applicant evicted from the previous matrimonial home even since his estranged wife (sole owner of the CC) no longer occupies the home.

[4] I am aware of the provisions of Section 17 of the Superior Court Act, 10 of 2013 when a court a quo can grant an application for leave to appeal against a judgment of that court. The crux is whether the appeal would have a reason­ able prospect of success on appeal.

[5] I am of the view that another court may well come to another conclusion as to whether the estranged wife of the Appellant may well be the using the CC as the vehicle to carry the battle to the Appellant in on-going divorce matter and that she may be seen as the alter ego of the CC.

[6] Having considered the arguments forwarded by Mr Haskins and Me Mentz, and reading the papers, I am of the opinion that there may well be a reason­ able prospect that another court may come to another decision of the facts before the court.

[7] Leave to appeal is therefore granted to the Applicant to the full court of the Gauteng Division, Pretoria.

[8] Costs of the application will be costs in the appeal. Should the appellant fail to prosecute the appeal within the Rules of Court, the appellant will be liable for the costs hereof.

Signed on 29 July 2022

J HOLLAND-MUTER

ACTING

JUDGE OF THE PRETORIA HIGH COURT

Application heard on 28 July 2022

Judgment uploaded onto Caselines on 29

July 2022

Counsel obo Appellant: M

Haskins SC

Couzyn Hertzog & Horak Inc

(annaliem@couzyn.co.za)

Counsel obo First Respondent: S

Mentz

Clark Attorneys

(eerasmus@clarks.co.za

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

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

Superior Courts Act, 10 of 2013

Legislation

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