Sandton Square Portion 7 (Pty) Ltd v Haloware Investments (Pty) Ltd (11699/2013) [2014] ZAGPPHC 168 (3 April 2014)

Sandton Square Portion 7 (Pty) Ltd v Haloware Investments (Pty) Ltd (11699/2013) [2014] ZAGPPHC 168 (3 April 2014)

The court found that the test for leave to appeal is whether there are reasonable prospects that another court might reach a different conclusion. Clause 12 of the agreement was accepted as a lex commissoria, and the fairness of its effect was deemed irrelevant. The applicant had sufficiently relied on clause 12 in its case, and the issue was adequately canvassed in the papers. After considering the judgment, the application, and oral arguments, the court was satisfied that reasonable prospects of success existed and granted leave to appeal to the Full Court.

Citation
[2014] ZAGPPHC 168
Parties
Applicant: Sandton Square Portion 7 (Pty) Ltd; Respondent: Haloware Investments (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 April 2014
Case Number
11699/2013
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Order on Cancellation of Agreement
Outcome
Leave to appeal granted to the Full Court of the Gauteng Provincial Division.
Judges
TM Makgoka
Legal Topics
Leave to Appeal, Lex Commissoria, Contract Cancellation, Prospects of Success
Civil Procedure Commercial and Corporate Leave to Appeal Lex Commissoria Contract Cancellation Prospects of Success

Case Brief

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Parties

Sandton Square Portion 7 (Pty) Ltd

Applicant

Haloware Investments (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment and Order on Cancellation of Agreement

Legal Issues

  1. 1 Whether there are reasonable prospects that another court might reach a different conclusion regarding the validity of the cancellation of the agreement.
  2. 2 Whether clause 12 of the agreement constitutes a lex commissoria and its effect on the fairness enquiry.
  3. 3 Whether the respondent expressly relied on clause 12 as a lex commissoria.

Ratio Decidendi

The court found that the test for leave to appeal is whether there are reasonable prospects that another court might reach a different conclusion. Clause 12 of the agreement was accepted as a lex commissoria, and the fairness of its effect was deemed irrelevant. The applicant had sufficiently relied on clause 12 in its case, and the issue was adequately canvassed in the papers. After considering the judgment, the application, and oral arguments, the court was satisfied that reasonable prospects of success existed and granted leave to appeal to the Full Court.

Court Disposition

Leave to appeal granted to the Full Court of the Gauteng Provincial Division.

Orders

  • The applicant is granted leave to appeal to the Full Court of the Gauteng Provincial Division.
  • The costs of this application are costs in the appeal.