South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 7063/02

DATE:2002-09-26

In the matter between

CVS TRAVEL INTERNATIONAL (PTY) LTD.................................................................Applicant

and

FILM FUN HOLDINGS (PTY) LTD...............................................................................Respondent

JUDGMENT

WILLIS, J: This is an application for leave to appeal against the judgment which I granted in this matter on 29 August 2002. Mr Cohen for the applicant has submitted in the first instance that by reason of the fact that I failed pertinently in my order to deal with the relief sought in prayer 2 of the notice of motion, namely "order that the warrant of execution issued by the respondent under Case No. 2002/7063 pursuant to the judgment granted on 14 May 2002 be stayed, alternatively set aside pending the determination of this application", it was obvious that my judgment was fatally defective and that another court would come to a different conclusion. Accordingly leave to appeal should be granted.

In my view there is no merit whatsoever in this submission. By reason of the fact that I dismissed the application for rescission pertinently sought in prayer 1 of the notice of motion, prayer 2 became entirely irrelevant. By failing to make an order touching upon the issues dealt with in prayer 2, the warrant of execution would remain effective and that in effect is the result of the order which I granted.

In so far as the substantive merits of the application for rescission together with the application for leave to appeal are concerned, in my view there is no reasonable prospect that another court would find that I failed to exercise a proper and judicial discretion in this matter.

For this reason there can be no reasonable prospects of success in an appeal and the application for leave to appeal is dismissed with costs.