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[2016] ZAWCHC 208
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La Farge Industries SA (Pty) Ltd v High Sights CC (341/2015) [2016] ZAWCHC 208 (13 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 341/2015
In
the matter between:
LA
FARGE INDUSTRIES SA (PTY)
LTD
Applicant
and
HIGH
SIGHTS
CC
Respondent
Court:
Canca,
AJ
Date
of Hearing:
8
December 2016
Date
of Judgment:
13
December 2016
JUDGMENT
1.
The
applicant seeks leave to appeal to a Full Bench of this Court,
alternatively to the Supreme Court of Appeal, against the whole
of my
judgment handed down on 8 November 2016 when I dismissed the
applicant’s rescission application with costs. This
application is opposed by the respondent.
2.
The
judgment is attacked on approximately 19 grounds. The applicant
contends that there are reasonable prospects that a Court
of Appeal
will find that I erred in one or more of these grounds. I do
not consider it necessary to set out these grounds
or to transverse
them separately for purposes of this judgment. They are set out
in detail in the notice of the application
for leave to appeal.
I will only deal with the facts where it is necessary to do so as
some are set out comprehensively in
my judgment.
3.
It
was contended on behalf of the applicant that I erred,
inter
alia,
in
finding the explanation by the applicant’s attorney, Ms Palm,
to be unsatisfactory and that her partner’s (Hollander)
confirmatory affidavit (as the person who was seized with the matter
before she took it over) unhelpful in clarifying the reasons
for the
default. The essence of Palm’s explanation for the
default was that Hollander failed to place a hard copy of
the
respondent’s application to compel in the physical file on the
matter. That application remained in electronic
format in
Hollander’s computer, so the contention continued. I have
dealt with this aspect of the matter in paragraph
10 of my judgment.
However, ever if I was wrong in finding that the applicant’s
explanation was not reasonable, the
applicant’s still had to
satisfy two further requirements in order to have succeeded with her
rescission application.
4.
In
paragraph 12 and 13 of the judgment, I set out my reasons for finding
that the defence put up by the applicant was neither
bona
fide
nor
had any
prima
facie
prospects
of success in the event that rescission was granted. Repeating
those reasons here does not justify judicial time
as they are set out
in detail in the aforementioned paragraphs.
5.
In
a parting shot and as the last arrow in her quiver, Ms Lombard argued
that I also erred in not finding that the tender made on
behalf of
the applicant, at the hearing of the matter, to pay the respondent’s
costs of the application on an attorney and
client scale, was a
sufficient ‘
soothing
balm’
in respect of any prejudice the respondent would suffer should I
grant the rescission. Had I been inclined to grant the
rescission application on that basis, would have meant ignoring
longstanding precedent on the grounds upon which rescission is
granted. I was not persuaded by that argument and remain so.
6.
Having
considered all of the applicant’s grounds of appeal to a
Superior Court, I do not consider any of the grounds raised
to attack
my judgment sufficiently convincing that another Court would come to
a decision which will differ from mine. Not
only is this
application lacking in merit, but patently, in my view, contains no
basis which will convince a Court of Appeal to
overturn my judgment.
7.
In
the result, I order as follows:
The
application for leave to appeal is dismissed with costs.
---------------------------
CANCA,
AJ
Appearances
For
the Applicant:
Adv N Lombard
Instructed
by:
Palm Hollander Attorneys
Florida
Johannesburg
For
the Respondent:
Adv M Ipser
Instructed
by:
Schliemann Inc
Cape Town