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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – PORT ELIZABETH

 

                                                                                      Case no: 3462/2012

                                                                                    Date Heard:04/04/2014

                                                                             Date Delivered: 08/04/2014

 

In the matter between:                                                            

 

CROSS POINT TRADING 199 (PTY) LTD                              PLAINTIFF / RESPONDENT

 

AND

                   

TRADE LINK RETAIL SYSTEMS (PTY) LTD                          DEFENDANT / APPLICANT

 

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

 

SMITH J:

[1] he defendant applies for leave to appeal against the whole of my judgment delivered on 25 February 2014. The defendant relies on a plethora of grounds set out in its comprehensive application for leave to appeal.

[2] Mr Sholto-Douglas SC, for the defendant, has, however, confined his argument to only a few of those grounds (without abandoning the remainder set out in the application for leave to appeal). He  accordingly submitted that another court:

(i)     may find that in requesting a system as good as or better than that installed at the Fig Tree Spar the plaintiff did not become entitled to a system that had precisely the same security features as that at the latter store;

(ii)     might reasonably apply policy considerations differently, and may thus arrive at a different conclusion in respect of the issue of causation; and

(iii)    may reasonably find that the plaintiff failed to take reasonable steps to mitigate its damages.

[3] Mr Beyleveldt SC, who appeared for the plaintiff, opposed the application.

[4] I am, however, persuaded that there are indeed `reasonable prospects that another court might find differently in respect of one or more of the grounds relied upon by the defendant.

[5] And this being the only test at this stage, I am constrained to grant leave to appeal.

[6] In the result the following order issues:

(a)         The defendant is granted leave to appeal against the whole of the judgment delivered on 25 February 2014, on the grounds set out in its application for leave to appeal;

(b)         Costs of this application shall be costs in the appeal.

_______________________

J.E SMITH

JUDGE OF THE HIGH COURT

 

Appearances

 

Counsel for the Plaintiff / Respondent                 :               Advocate Beyleveldt SC

 

Attorneys for the Plaintiff/ Respondent                :               Friedman and Scheckter

                                                                                                       Newton Park

                                                                                                       Port Elizabeth

                                                                                                       6001

                                                                                                       Re: Mr Friedman/eg/L08279

 

Counsel for the Defendant / Applicant                  :              Advocate Douglas SC

 

Attorneys for the Defendant/ Applicant                 :             Wilke Weiss van Rooyen

                                                                                                      2 Cuyler Street, Central

                                                                                                      Port Elizabeth

                                                                                                       Ref: P van Rooyen/Irma/P47

        

Date of Hearing                                            :                     04 April 2014

Date of Delivery                                           :                          

 

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