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South Africa Ruling

South Gauteng High Court, Johannesburg

Van Dyk and Another v Rhodes (23121/2019) [2024] ZAGPJHC 610 (28 June 2024)

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Source document

01

Holding and result

The court found that the applicants have demonstrated reasonable prospects of success on appeal. The issues raised in the application are sufficiently substantial to warrant reconsideration by another court. However, the matter does not require the attention of the Supreme Court of Appeal and is more appropriately dealt with by a Full Court of the Gauteng Division. Accordingly, leave to appeal is granted to the Full Court, with costs to be determined in the appeal.

Court disposition

Leave to appeal granted to a Full Court of the Gauteng Division, Johannesburg.

Orders

  • The applicants are granted leave to appeal the judgment and order of Wright J of 4 June 2024.
  • Leave is to a Full Court of the Gauteng Division, Johannesburg.
  • Costs in the appeal.

02

Material facts

Parties

Frederick Ernst Van Dyk

Applicant Counsel: Adv S McTurk

Chris Avril Stuart

Applicant Counsel: Adv S McTurk

Teresa Mary Rhodes

Respondent Counsel: Adv JW Kloek

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants contend that the judgment dismissing their main application contains errors of law and/or fact, and that there are reasonable prospects that another court may come to a different conclusion. They seek leave to appeal, arguing that the issues raised are substantial and merit reconsideration.
Respondent
The respondent opposes the application for leave to appeal, maintaining that the judgment was correct and that there are no reasonable prospects of success on appeal. The respondent submits that the application is without merit and should be dismissed with costs.

05

Court’s reasoning

  1. 01

    Section 17(1)(a) of the Superior Courts Act 10 of 2013

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

  2. 02

    Superior Courts Act 10 of 2013

    The appropriate forum for appeal is determined by the nature and complexity of the case and whether it warrants the attention of the Supreme Court of Appeal.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants have demonstrated reasonable prospects of success on appeal. The issues raised in the application are sufficiently substantial to warrant reconsideration by another court. However, the matter does not require the attention of the Supreme Court of Appeal and is more appropriately dealt with by a Full Court of the Gauteng Division. Accordingly, leave to appeal is granted to the Full Court, with costs to be determined in the appeal.

Obiter and limits

  • The court notes that the threshold for granting leave to appeal is not whether the appeal will succeed, but whether there is a reasonable prospect that another court may come to a different conclusion.
  • The allocation of costs in the appeal will be determined by the appellate court.

Court disposition

Leave to appeal granted to a Full Court of the Gauteng Division, Johannesburg.

  • The applicants are granted leave to appeal the judgment and order of Wright J of 4 June 2024.
  • Leave is to a Full Court of the Gauteng Division, Johannesburg.
  • Costs in the appeal.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Ruling

[2024] ZAGPJHC 610

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case NO: 23121-2019

1. REPORTABLE: No

2. OF INTEREST TO OTHER JUDGES: No

3.

REVISED

28 June 2024

In the matter between:

FREDERICK ERNST VAN DYK First Applicant

CHRIS

AVRIL STUART

Second Applicant

and

TERESA

MARY RHODES Respondent

JUDGMENT

WRIGHT J

[1] On 4 June 2024 I handed down a typed, signed judgment in the main application which I dismissed. The applicants now seek leave to appeal. In my view, the applicants have a reasonable prospect on appeal. The case does not need the attention of the SCA.

Order

[1] The applicants are granted leave to appeal the judgment and order of Wright J of 4 June 2024.

[2] Leave is to a Full Court of the Gauteng Division, Johannesburg.

[3] Costs in the appeal.

GC Wright

Judge of the High Court

Gauteng Division, Johannesburg

HEARD :28 June 2024

DELIVERED :28 June 2024

APPEARANCES :

Applicants Adv S McTurk

083 256 5561

adv.shaun@mcturk.co.za

Instructed By WA Opperman Attorneys

010 446 9962

Respondent Adv JW Kloek

082 600 5350

kloek@rsabar.com / kloek@mweb.co.za

Instructed By JJ Badenhorst & Associates Attorneys Inc

011 764 4745

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

Legislation referenced in the available case record.

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