Kingsgate Clothing (Pty) Ltd and Others v Edcon Limited (In Business Rescue) (57045/20) [2022] ZAGPPHC 162 (1 March 2022)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

1 March 2022

CASE NO: 57045/20

In the matter between:

KINGSGATE CLOTHING (PTY) LTD

FIRST APPLICANT

MAYTEX LINEN CC

SECOND APPLICANT

SUPER OCEAN TRADING CC

THIRD APPLICANT

MAYTEX CARDING CC

FOURTH APPLICANT

CRUISE COLLECTIONS CC

FIFTH APPLICANT

TWIN CLOTHING MANUFACTURERS (PTY) LTD

SIXTH APPLICANT

APPAREL INDUSTRIES (PTY) LTD

SEVENTH APPLICANT

CLEMATIS TRADING (PTY) LTD

EIGHTH APPLICANT

and

EDCON LIMITED (IN BUSINESS RESCUE)

FIRST RESPONDENT

PIERS MARSDEN

SECOND RESPONDENT

(JOINT BUSINESS RESCUE PRACTITIONER)

LANCE SHAPIRO

THIRD RESPONDENT

(JOINT BUSINESS PRACTITIONER)

JUSTICE FDJ BRAND

FOURTH RESPONDENT

JUDGMENT

Van der Schyff J

Introduction

[1] In this judgment, the parties are referred to as in the main application.

[2] The applicants filed an application for leave to appeal against the whole of the judgment and order delivered on 15 November 2021. The applicants raised several grounds of appeal. I do not intend to deal with these grounds herein, as I handed down a written judgment wherein I provided the reasons for my findings. The grounds of appeal generally constitute a re-arguing of matters argued when the application was heard.

[3] It is trite that to succeed in an application for leave to appeal, 'more is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless.'[1]

[4] The applicants submit that a compelling reason exists for leave to appeal to be granted to them. I disagree. The importance of context in interpreting documents, and the admissibility of contextual evidence do not constitute a novel ground that needs to be pronounced on by the Supreme Court of Appeal.

[5] After considering the grounds of appeal, I am not of the opinion that a reasonable probability exists that another court would or could come to a different conclusion.

[6] Regarding costs, the application for leave to appeal was not complex. The respondents did not file heads of argument and the submissions made by counsel was to the point and curt. Opposing the application for leave to appeal did not require the service of two counsel.

ORDER

In the result, the following order is made:

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

E van der Schyff

Judge of the High Court

Delivered: This judgement is handed down electronically by uploading it to the electronic file of this matter on Caselines. It will be sent to the parties/their legal representatives by email as a courtesy gesture. The date for hand-down is deemed to be 1 March 2022.

Counsel for the applicants: Adv. O A Moosa SC

With: Adv. A MacManus

Instructed by: Pather and Pather Attorneys Inc.

Counsel for the 1st - 3rd respondents: Adv. A E Sham SC

With: Adv. J. E Smit

Instructed by: ENS Africa

Date of the hearing:

21 February 2022

Date of judgment: 1 March 2022

[1] Smith v S 2012 (1) SACR 567 (SCA) at para 7.