Barbaglia v Barbaglia and Others; Barbaglia v Barbaglia and Others (18493/2021; 21928/2021) [2022] ZAGPJHC 221 (11 April 2022)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2022 >> [2022] ZAGPJHC 221 | Noteup | LawCite sino index ## Barbaglia v Barbaglia and Others; Barbaglia v Barbaglia and Others (18493/2021; 21928/2021) [2022] ZAGPJHC 221 (11 April 2022) Barbaglia v Barbaglia and Others; Barbaglia v Barbaglia and Others (18493/2021; 21928/2021) [2022] ZAGPJHC 221 (11 April 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2022_221.html sino date 11 April 2022 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: 18493/2021 REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED. 11 th April 22 In the matter between: SILVANA IDA BARBAGLIA                                                     APPLICANT And MICHAEL ANTINIO VINCENZO BARBAGLIA                       FIRST RESPONDENT PABAR (PROPRIETARY) LIMITED                                        SECOND RESPONDENT CHARL EDWARD ANDERSON N.O.                                      THIRD RESPONDENT GREGORY MASSIMO BARBAGLIA                                       FOURTH RESPONDENT LEONARD PULE N.O. (In his capacity as the Master of the High Court, Johannesburg as defined by the Administration of the Estate Act, 66 of 1965)                      FIFTH RESPONDENT Case No: 21928/2021 SILVANA IDA BARBAGLIA                                                     APPLICANT And MICHAEL ANTINIO VINCENZO BARBAGLIA                       FIRST RESPONDENT PABAR (PROPRIETARY) LIMITED                                        SECOND RESPONDENT CHARL EDWARD ANDERSON N.O.                                      THIRD RESPONDENT GREGORY MASSIMO BARBAGLIA                                       FOURTH RESPONDENT JUDGMENT Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to Parties / their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date of the judgment is deemed to be the 11 th of April 2022 TWALA J [1]        For the sake of convenience, in this judgment I shall refer to the parties as in convention. Furthermore, this Court directed that this matter be determined on the papers without an oral hearing, as provided for in the Gauteng Division Consolidated Directives; re Court Operations during the National State of Disaster issued by the Judge President of this Division on the 18 th of September 2020. [2]        The first and second respondents launched this application for leave to appeal against the whole of the judgment and order of this Court in both the case numbers as reflected above handed down electronically on the 22 nd of March 2022 granting the applicant the interim relief and the relief as prayed for in terms of section 163 of the Companies Act, 71 of 2008 . [3]        It is now settled law that leave to appeal may only be given where the Judge or Judges concerned are of the opinion that the appeal would have a reasonable prospect of success or where there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. [4]        See section 17 of the Superior Courts Act, 10 of 2013 provides the following: “ Leave to Appeal 17. (1)           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; (b) …………………….. (c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.” [5]        The grounds for the leave to appeal are succinctly stated in the notice of application for leave to appeal which encompasses the issues in both cases and I do not intend to restate them in this judgment. Furthermore, I would like to extend my gratitude and appreciation to counsel for the parties for the submissions made in their concise heads of argument. [6]        It is trite law that the spoliation relief is an interim remedy since it does not deal with the issues with regards to the rights of the parties. To put it differently, the spoliation relief is interim since it does not dispose of all or substantial issues in the case. It is my view therefore that since the spoliation order is interim in nature, it is not appealable and the application for leave to appeal falls to be dismissed on this point. (See Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others 2020 (8) SA 325) [7]        In as far as the judgment and order with regard to the section 163 application, I am satisfied that I considered and dealt with all the issues raised in the application for leave to appeal in my judgment. I am of the respectful view that there are no prospects of success in the appeal of this judgment. To put it in other words, there are no prospects that another court may come to a different decision in this case. It follows therefore that the application for leave to appeal falls to be dismissed. [8]        In the circumstances, I make the following order: 1. The application for leave to appeal on both cases is dismissed; 2. The first respondent is liable for the costs of both applications including the costs of two counsel. TWALA M L JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION Filing of Heads of Argument:     6 th April 2022 Date of Judgment:                       11 th April 2022 For the Applicant:                        Advocate AE Franklin SC Advocate FR McAdam Instructed by:                               Bove Attorneys Incorporated Tel: 011 485 0424 vickyb@boveattorneys.co.za For the First and Second Respondent:                                 Advocate J Peter SC Advocate C Dittberner Instructed by:                                  Werkmans Attorneys Tel: 011 535 8000 ivonwildenrath@werkmans.com For the Third Respondent:          Lawtons Africa Tel: 011 775 6373 Arnold.shapiro@lawtonsafrica.com charland@pabar.co.za For the Fifth Respondent:           Bowmans Attorneys Tel: 011 669 9555 Tim.gordon-grant@bowmans.com sino noindex make_database footer start