R700 Truck Stop (Pty) Ltd v Smit and others (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Loubser J
• Judgment Date: 18 August 2023
• Citation: 2023 JDR 3122 (FB)
• Hearing Date: 11 August 2023
• Docket Number: 922/2023
• Court: Free State Division, Bloemfontein

Loubser J:

[1]

This is an application by the respondents for leave to appeal against the judgement of this court confirming the rule nisi issued by Bomela, AJ with costs on an attorney and client scale. The facts and circumstances of the matter appear from the judgement, and will not be repeated herein.

2023 JDR 3122 p2

Loubser J

[2]

The application for leave is based on the usual test, namely that there is a reasonable prospect that another court would come to a different conclusion. This means that leave to appeal must not be granted unless there truly is a reasonable prospect of success. [1]

[3]

On behalf of the respondents it was contended that the court has erred in several respects in coming to its conclusion. Even if it could be assumed, for the moment, that there is merit in some of these contentions, then I am not persuaded that there is truly a reasonable prospect that another court would come to a different conclusion based on those contentions. In my view, a court of appeal would rather agree with the main findings made by this court in its judgement as far as material issues are concerned.

[4]

For instance, this court found that there was a multiplicity of factual disputes between the parties on the papers before the court, and that it would therefore follow the guidelines laid down in Plascon-Evans to determine whether it could find in favour of the applicant. I do not think that this approach can be faulted.

[5]

Further, this court found that it was not in dispute that Pienaar in fact paid an amount of money for the clientele when he purchased the applicant company. It was therefore found that it would serve no purpose to refer for oral evidence the question whether the R500 000.00 paid by Pienaar was for the clientele list or not. The court also found that the information sought by Pienaar, is still in possession of the first respondent because he conceded that he had taken the external device with that information with him when he left the applicant, and because it cannot be accepted that the information on the device were transferred to the applicant thereafter on 7 February 2023.

[6]

This court further found that the first respondent was not a de facto director nor a shareholder of the applicant. Pienaar therefore had the necessary locus standi to bring the application on behalf of the applicant. The court concluded by finding that the applicant is the owner of the clientele list and the...