Wonderpark Handelaars CC v Kanonkop Stainless (Pty) Limited and Another (70923/2015) [2017] ZAGPPHC 957 (16 March 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION. PRETORIA)

(1) REPORTABLE: YES/NO.

(2) OF INTEREST TO OTHER JUDGES: YES/NO.

(3) REVISED.

CASE NO: 70923/2015

DATE:16/3/2017

IN THE MATTER BETWEEN:

WONDERPARK HANDELAARS CC Applicant

And

KANONKOP STAINLESS (PTY) LIMITED 1ST

Respondent

ENGEN PETROLEUM LIMITED 2ND

Respondent

JUDGMENT

(in the application for leave to appeal)

KOLLAPEN J:

1. This is an application for leave to appeal against the whole of the order and judgment of this Court of the 15th of December 2016. The grounds are fully set out in the application for leave to appeal.

2. The crisp issue for determination by this Court in the main application was whether the first respondent's conduct in relation to the negotiations and/or discussions between the parties in relation to the lease agreement that existed between them, was unconstitutional to the extent that it precluded it from relying on Clause 19.4 of the lease agreement between the parties under circumstances where it was not in dispute that the applicant had not effected a written renewal of the lease.

3. In the judgment of the Court it had been found that the parties had at most committed to a long-term relationship whose duration was not clear or not agreed upon. In addition it concluded that the second respondent was an important role player in the structure of the relationship between the parties and its stance and views were relevant in relation to how the parties' future relationship would unfold. The Court accordingly had found that it could not be said that there was a common understanding to renew the lease nor could it be said that the conduct of the respondent could be characterised as being unconstitutional precluding it from relying on clause 19.4 of the lease agreement.

4. Section 17 of the Superior Courts Act (Act 10 of 2013), states the test in relation to leave to appeal as follows:

"17 Leave to appeal

Leave to appeal may only be given where the judge or judges concerned are of the opinion that -

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;"

5. There is no doubt that the legal issue raised is an important one in relation to the development of the law of contract and how such development is impacted upon by the provisions and values of the Constitution.

6. On the other hand the factual matrix and factual findings I have made do not lend themselves to the determination of the legal issue in favour of the appellant. While in law the renewal of the lease was a matter strictly between the parties, in truth and reality it was a matter involving the need to reach some suitable arrangement with the second respondent and to that extent I was not of the view that the prevailing circumstances and the conduct of the parties supported the conclusion that there was in fact a renewal of the lease that came about.

7. Accordingly in my view there is no compelling reason why the appeal should be heard. In addition, it cannot be said that the appeal would have a reasonable prospect of success.

8. Accordingly, the application for leave to appeal must fail.

ORDER

9. In the circumstances I would make the following order:

• The application for leave to appeal is dismissed with costs, including the costs of senior counsel.

N KOLLAPEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

HEARD ON: 09 March 2017

APPEARANCES

FOR THE APPLICANT: Adv. J P VORSTER SC

INSTRUCTED BY: Van Zyl le Roux Inc. (ref.: A van Velden/ADIMAT72785)

FOR THE 1st RESPONDENT: Adv. J G BERGENTHUIN SC

INSTRUCTED BY: Christo Coetzee Attorneys (C Coetzee/wr/SK0010)