Trustees for the time being of the Bymyam Trust v Butcher Shop and Grill CC (11877/2020) [2021] ZAWCHC 269 (22 December 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No.: 11877/2020

In the matter between:

THE TRUSTEES FOR THE TIME BEING

OF THE BYMYAM TRUST Applicant

and

THE BUTCHER SHOP AND GRILL CC Respondent

Date of hearing: 17 December 2021

Date of judgment: 22 December 2021 (delivered electronically)

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

PANGARKER AJ

1. In the judgment which I delivered on 19 November 2021, I dismissed the respondent’s counter application for rental remission with costs and ordered it to make payment to the applicant of R2 703 191, 17 which represented all amounts due by the respondent to the applicant in terms of the provisions of the lease concluded between the parties in February 2014 (Judgment, par 111). Additionally, in terms of the Order at paragraph 111 of the judgment, the respondent was ordered to pay interest on the amount as well as costs on the scale as between attorney and client plus VAT. The applicant's applications to strike out were dismissed with costs, including costs two counsel.

2. I refer to the parties as they were cited in the main proceedings before me in August 2021. The respondent delivered its Notice of Application for Leave to Appeal on 25 November 2021 and save for the order regarding the two striking out applications, seeks leave to appeal to the Supreme Court of Appeal (SCA), alternatively, to the Full Bench of this Division against the whole of the judgment and orders (including costs).

3. In summary, the grounds upon which the application is based are: firstly, that I erred when I dismissed the counter application on the basis that the respondent had failed to make out a case to pierce the corporate veil or disregard the separate juristic personalities of the respondent and Apoldo Trade (Pty) Ltd (Apoldo), the sub-lessee of the leased premises. Secondly, that I had erred when finding that the respondent had failed to prove, on a balance of probabilities, a lack of beneficial occupation of the leased premises which had the result that I had incorrectly found that it was not entitled to claim rental remission from the applicant (Judgment, par 108).

4. The application falls squarely under section 17 (1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 read with Uniform Rule 49(1). It is the respondent's contention that there are reasonable prospects that another Court would find that this Court erred in arriving at certain findings which culminated in its dismissal of the counter application on the grounds as stated. It is also submitted that there exist compelling reasons to grant leave to appeal to the SCA. The applicant opposes this application, submitting that there are no reasonable prospects of success on appeal and that the dispute between the parties is a factual dispute.

5. In his submissions on the first aspect relating to piercing the corporate veil, the respondent’s counsel is of the view that this Court was incorrect to have applied section 20(9) of the Companies Act 71 of 2008 in respect of prayer 1A of the counter application which sought a declaration that the separate juristic personalities of Apoldo and the respondent ought to be disregarded for the purpose of the rental remission claim. It is submitted that I should have applied and extended the common law, which, as was found in Ex parte Gore and Others NNO 2013 (3) SA 382 (WCC) at par 34, supplements section 20(9) of the Companies Act.