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[2011] ZAGPJHC 24
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Louw v Hesselink In re: Hesselink v Louw (42743/2010) [2011] ZAGPJHC 24 (30 March 2011)
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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
42743/2010
DATE:
30/03/2011
In the matter between:
LOUW,
HENDRIK
................................................................................
Applicant
and
HESSELINK,
ANN-MARI
ELIZABETH
...........................................
Respondent
In re:
HESSELINK,
ANN-MARI
ELIZABETH
...............................................
Applicant
and
LOUW,
HENDRIK
...............................................................................
Respondent
______________________________________________________________
APPLICATION FOR LEAVE TO APPEAL
______________________________________________________________
MOSHIDI, J
:
INTRODUCTION
[1] This is an application for leave to appeal against the whole of
my judgment and order granted on 7 December 2010.
THE EFFECT OF THE ORDER
[2] The effect of the order was
to compel the appellant to comply with certain of the obligations he
undertook in the divorce settlement
which was made an order of court
on 15 October 2009. The obligations included one intended partly to
benefit the minor son of
the parties, H A L, born on 5 April 2006.
Primary residence and care of the minor son was awarded to the
respondent subject to
the appellant’s rights of reasonable
contact. A further order in respect of which leave to appeal is now
sought relates
to the costs of the application. Costs were awarded
on the scale as between party and party. (Regrettably, the typed
copy of
the court order omits to mention such costs order.) The
submission was such costs should have been ordered to be paid by the
appellant
on the scale as between attorney and own client.
[3] The grounds of appeal filed by Attorneys Hooyberg on behalf of
the appellant are as set out in the notice of application for
leave
to appeal dated 15 December 2010. I shall deal with the grounds of
appeal later hereunder.
[4] The application for leave to
appeal is opposed by the respondent who filed a lengthy opposing
affidavit dated 25 January 2011.
Her opposing affidavit was attested
to on 24 January 2011. The latter date becomes relevant later in
this judgment. The respondent
has urgently applied in terms of Rule
49(11) of the Uniform Rules of Court to declare the order granted on
7 December 2010 executable
with immediate effect. The appellant filed
an answering affidavit opposing this application. At the hearing of
the application
for leave to appeal, both counsel agreed not to
proceed with the Rule 49(11) application at that time.
[5] The conduct of the appellant
in this matter displays a measure of disrespect for the Rules of
Court. The appellant has shown
signs of deliberate obstructiveness,
and tardiness. He has taken technical points especially in regard to
the proceedings of 7
December 2010 even although he clearly was not
prejudiced by the claimed breaches of the Rules. I would have
expected the approach
of an experienced counsel at the Johannesburg
Bar which the appellant is to have been different. The matter
concerns the interests
of his child whose interests require that he
seek to deal with and resolve the matter expeditiously cheaply and on
its merits.
I was surprised to be required to deal with the
obstructive points raised. They were clearly raised with a view of
delaying the
matter and not because the Appellant was actually
prejudiced..
THE GROUNDS OF APPEAL
[6] The first ground of appeal
is that during the proceedings of 7 December 2010, the Court
committed certain irregularities by
permitting the respondent’s
counsel to make submissions pertaining to this matter in the absence
of the appellant’s
counsel, and in allowing the respondent’s
counsel to hand up a further affidavit, which affidavit had not been
seen by the
applicant’s counsel or his attorneys. The second
ground of appeal contends that the Court erred in finding that the
service
of the notice of motion by the respondent on the appellant’s
erstwhile attorneys of record was not proper service in terms
of Rule
4(1) of the Uniform Rules of Court. The third and the fourth grounds
of appeal are, respectively, that the Court incorrectly
exercised its
discretion in refusing a postponement in order to allow the appellant
to file answering papers, and that the Court
failed to apply its mind
to the merits of the application.
[7] It is abundantly clear that
when the grounds of appeal were formulated, neither the appellant nor
his legal representatives
had sight of the typed transcript of the
record.
[8] This matter came before me
in the busy unopposed motion court on 7 December 2010. Mr Pullinger
who appeared for the applicant
was not available to argue the matter
during the course of the morning owing to what he called “
commitments
in other courts
”.
(This can only suggest that Mr Pullinger was double briefed.) Adv J
van den Berg SC of the Pretoria Bar represented the
respondent and
was present in Court. In the absence of Mr Pullinger, the Court
indicated that any relevant documents should be
handed up so that the
Court could read same prior to the hearing of the application. This
was purely to facilitate the hearing
of the matter and constituted no
ruling on their admissibility. Counsel for the respondent handed up
short heads of argument, as
well as a supplementary affidavit by the
respondent’s attorney of record which dealt with the
correspondence exchanged between
the parties’ attorneys, as
also certain matters concurring whether or not the notice of
application had been properly served.
When the matter was called
later respondent’s counsel said that the affidavit and the
short heads of argument had been handed
to Mr Pullinger during the
lunch adjournment.
[9] When Mr Pullinger eventually
became available during the course of the afternoon, the matter was
recalled. The appellant had
not filed answering papers in spite of
repeated requests for him to do so prior to the hearing of the matter
and his ability to
do so during the intervening period had he wished
to do so. The appellant submitted that the appellant intended to
vigorously
oppose the application. Two issues were raised namely that
as no answering affidavit had been delivered that he required a
postponement
to file answering papers and with regard to the service
that the service of the application on the appellant’s
erstwhile
attorneys during the divorce action namely N Becker, was
improper, accordingly there had been no service at all so it was
submitted.
The submission was that the Court should postpone the
matter to enable an affidavit to be filed or strike the matter off
the roll
as there had been no service. The applicant also objected
to the Court having regard to the affidavit of the respondent’s
attorney, Mr Johan Schoeman (“
Schoeman
”)
which had been handed up in his absence, this notwithstanding that
the appellant’s counsel had seen same prior to
the hearing.
Counsel for the respondent argued his case and moved for an order in
terms of the prayers in the notice of motion.
[10] At the end of the argument,
it was apparent that the service of the notice of application had
been effective whether or not
the attorneys on which it was served
were only appointed by the applicant for the divorce proceedings. The
proceedings had in fact
come to the attention of the appellant
timeously. It was not in dispute that the affidavit of Schoeman
showed that the notice
of application had been served on N Becker as
far back as 22 October 2010, some six weeks before the hearing during
December..
It was also not in dispute that pursuant to such service,
there ensued much correspondence between N Becker and Schoeman
concerning
the matter. This correspondence continued until about 2
December 2010. The service clearly had the desired effect of bringing
the
notice of application to the attention of the appellant. This
conclusion is corroborated by the fact that the appellant instructed
his current attorneys of record, Hooyberg Attorneys, as well as
briefed Mr Pullinger to appear in the matter on his behalf on 7
December 2010, the date set down for the hearing.
[11] On that date, the Court
being satisfied with service considered the merits of the application
and formed the view that the
respondent had made out a case for the
relief claimed in the notice of motion. At the time, and in the
presence of applicant’s
counsel, the Court gave brief reasons
for the order granted. These reasons effectively rejected the
submissions of the applicant.
In the instant judgment, the Court
provides further reasons for the order granted on 7 December 2010, as
it is entitled to do.
The appellant has in any event, and in an
irregular and procedurally incorrect manner requested reasons for the
order of 7 December
2010 prior to the hearing of the present
application, as discussed below.
[12] It is not in dispute that N
Becker acted for the appellant in the divorce action which was
finalised on 15 October 2009.
Schoeman acted for the respondent and
has continued to act up to the present. The parties’ divorce
was acrimonious. This
is borne out by,
inter
alia
, the huge volume
of correspondence exchanged between the parties through their
respective attorneys. In para 5.5 of the founding
affidavit,
attached to the notice of application leading to the order of 7
December 2010, the respondent stated:
“
By
way of introduction I state that numerous letters have been exchanged
between our respective attorneys with regard to the issues
raised
above (the appellant’s failure to comply with parts of the
settlement agreement) and notwithstanding demand that the
Respondent
comply with his obligations, he has failed to do so. I have been
advised that it is not necessary to attach the numerous
letters
exchanged between our respective attorneys … Should the
Respondent however deny that numerous letters have been
exchanged
between our respective attorneys and that numerous demands have been
made to him to comply with his obligations, same
will then be
addressed in my replying affidavit and the correspondence attached.
”
(my insertions)
The correspondence was exchanged up to about 2 December 2010,
approximately one week prior to the proceedings of 7 December 2010.
[13] The affidavit of Schoeman
did not deal with the merits of the application at all. It was
handed up in support of the respondent’s
submission that, not
only was the notice of application served on N Becker on 22 October
2010, but also to prove the ensuing correspondence
between the
respective attorneys, and that the appellant was in fact timeously
made aware of the pending proceedings. For example,
in the letter
dated 27 November 2010 N Becker acknowledged receipt of the notice of
application. The letter proceeded to state
that:
“
…
Should your client see fit to proceed with the threatened
application, a special order of costs will be sought against her.
”
In a letter of 15 November 2010 addressed by the respondent’s
attorneys to the appellant’s attorneys, N Becker, the
following
was stated in the second-last paragraph thereof:
“
With
regard to our client’s application which was served at your
offices, we have noted the contents of your letter of the
27
th
of October 2010. Your letter makes it clear that your client is in
receipt of the said application and
we are proceeding
on 7 December 2010 to obtain the relief as sought in the notice of
motion. If your client wishes not to oppose
the application and/or to
file opposing papers, he does so at his own risk
.
If your client does decide to file opposing papers, same will be out
of time and he is requested to bring the necessary condonation
application with regard thereto.
”
(my underlining)
[14] On 22 November 2010 a
further letter was addressed by N Becker to the respondent’s
attorneys of record. Again on 22
November 2010, a further letter was
addressed by the appellant’s attorneys, N Becker, to which was
attached a cheque for
R13 915,66 being the balance outstanding on the
amount of R1 million which was owed by the appellant to the
respondent in terms
of the divorce settlement. On 22 November 2010,
N Becker again wrote to the respondent’s attorneys. The last
paragraph
of this letter reads as follows:
“
As
regards the remainder of the contents of your letter under reply,
we
have requested our client for instructions and will furnish you wish
a response in regard to the contents thereof in due course
/.”
(my underlining)
On 23 November 2010, a further
letter was addressed by N Becker, still acting on behalf of the
appellant, to the respondent’s
attorneys. On 24 November 2010,
the respondent’s attorneys wrote a letter to N Becker
confirming that they still acted for
the respondent. On 26 November
2010, the respondent’s attorneys addressed a letter to N
Becker. In this letter, the respondent’s
attorneys,
inter
alia
, enquired whether
N Becker still acted for the appellant, or whether they should
address future correspondence to the appellant
directly. On 30
November 2010, (several days before the proceedings), N Becker, still
acting on behalf of the appellant, addressed
a letter to the
respondent’s attorneys, stating
inter
alia
, that:
“
In
the circumstances, you are advised that a copy of the letter will be
placed in the court file and should your client attempt
to enrol the
matter for hearing and take an Order in absentia, a punitive de bonis
costs order will be sought against your Mr Schoeman.
”
[15] On 2 December 2010, some
mere five days before the hearing of the application, the
respondent’s attorneys addressed a
letter to N Becker. It is
necessary to reproduce the entire contents of the letter:
“
Our
client’s application was served on your offices and you
acknowledged receipt thereof. You have acted as attorney for
Adv.
Louw since the inception of the divorce matter and continue so to act
as is evident from your letter under reply and previous
letters
dealing with the said application. You have commented on the merits
of our client’s application, stating that same
is bad in law
and that your client intends having the application dismissed with a
punitive cost order. The subject matter of
the application has also
been the subject matter of numerous letters exchanged between our
respective firms with regard thereto.
It appears to us from a reading
of your letter that the only point your client wishes to raise is
that the application was not
served on him by the sheriff and that
service of the application on him via your offices is not proper
service in terms of the
Rules of Court. We disagree with your
contention but in any event the Court can condone the manner of
service of the application
on your client. Your client is aware of
the fact that the relief sought by our client is of semi-urgent basis
and has now become
urgent as the motor vehicle in question is no
longer safe for our client’s use and the use of their son,
Alexander, and must
be sold but cannot be sold because of your
client’s obstructive behaviour in not complying with the Court
Order. Your client
continues not to comply with his obligations with
regard to his son’s maintenance. As indicated in the notice of
motion,
our client is proceeding on 7 December 2010 to obtain an
order as therein requested.
Your client has now, for
the fourth time been informed that the matter will proceed on 7
December 2010 on an unopposed basis as
your client, with full
knowledge of the application and the relief our client seeks, has
chosen not to oppose same
.
This letter will equally be brought to the attention of the Court at
the hearing of the application.
”
(my underlining)
On the basis hereof, the
respondent’s counsel submitted that service of the notice of
application was properly effected on
the appellant and that he indeed
received the application and had knowledge of the contents thereof.
All the above evidence establishes
that N Becker was acting in the
matter and only shortly before the hearing ceased acting. There was
no notice of appointment or
withdrawal as attorneys of record served
and filed by N Becker. The evidence shows that prior to the
commencement of the proceedings
on 7 December 2010, the respondent’s
counsel was phoned by applicant’s counsel who informed that he
was acting on behalf
of the appellant on instructions of new
attorneys, Hooyberg. During that conversation applicant’s
counsel denied any knowledge
of N Becker having acted for the
appellant and also requested that the matter be stood down as he was
busy in another court.
[16] The correspondence between
the attorneys does not at all allude to the fact that a notice of
appointment as attorneys of record
was filed and served by Attorneys
Hooyberg once they received instructions from the appellant shortly
before the proceedings of
7 December 2010. What is apparent from the
evidence is that although the appellant knew in good time of the
proceedings of 7 December
2010, he deliberately chose not to file and
serve any opposing papers. The correspondence shows that insofar as
merits are concerned
the appellant consistently neglected/or failed
to comply with his obligations in terms of the divorce settlement,
particularly
in regard to the motor vehicle and the interests of his
own minor son. The applicant chose not to file papers timeously. He
has
made his bed, and must now lie in it. The appellant submitted
that the fact that the affidavit had been received in his absence
meant that the Court had entertained submissions from the
respondent’s counsel in the absence of the appellant’s
counsel,
in full knowledge that the appellant was represented. This
submission led to the next submission which was that the Court had
prejudged the issues and made up its mind prior to hearing
submissions from the appellant’s counsel. There is no merit in
the suggestion that the Court acted improperly or irregularly in
having a cursory glance at the affidavit of Schoeman in preparation
for the hearing. The main argument presented by Mr Pullinger when he
eventually became available, was that the service of the application
on N Becker was not proper. This submission was made notwithstanding
the fact that the appellant was in fact represented at the
hearing
and had been represented throughout as I have found earlier. The
applicant advanced contrary arguments. The applicant sought
relief on
the basis he had not been served and also sought a postponement of
file and answering affidavit, as it he had been served.
The
applicant was not prejudiced by the service even if it was irregular.
His current claims that he was not served and that
the application
be reserved are ludicrous and constitute a play to gain time. This
conduct amounts to an abuse of the Rules.
RULE 4 OF THE UNIFORM RULES OF COURT
[17] Rule 4 of the Uniform Rules
of Court prescribes variously that court processes must be brought to
the notice of a party against
whom legal proceedings are instituted
by way of serving a copy of the process in the manner directed by the
rules. In a sense,
and partly relevant to the facts in the present
matter, Rule 4(1)(aA) provides:
“
Where
the person to be served with any document initiating application
proceedings is already represented by an attorney of record,
such
document may be served upon such attorney by the party initiating
such proceedings.
”
It is clear that this subrule
caters mostly for interlocutory proceedings such as Rule 43
proceedings in a pending divorce action.
See
Willies
v Willies
1973 (3) SA
257
(D) at 259C-H. It is indeed correct, as argued by Mr Pullinger
that the respondent did not institute interlocutory proceedings
in a
pending divorce action, but issued the proceedings under a new or
different case number than that of the divorce action finalised
on 15
October 2009.
[18] However, in spite of the
above rules relating to service of process, each case must be decided
on its own merits, and in appropriate
cases, the Court retains its
discretion. For example, in
Van
Rensburg v Condoprops (42) (Pty) Ltd
2009 (6) SA 539
(ECD), the plaintiff sued the defendant for estate
agent’s commission. The Court was called upon to decide on a
special plea
in which the defendant argued that the present plaintiff
lacked
locus standi
,
and that the claim had prescribed. The Court also had to deal with
the question of the prescribed process to be followed in effecting
the substitution of a party, and certain non-compliance therewith.
The original plaintiff had been substituted by the present
plaintiff.
At para [7] of the judgment, Leach J said:
“
One
would probably normally have expected a substantive application to be
made for substitution. But the failure to proceed in
that way is not
necessarily fatal. It must be remembered, as was stressed by
Nienaber JA in the Brummer case cited above, (Brummer
v Gorfil
Brothers Investments (Pty) Ltd en Andere
1999 (3) SA 389
(SA), that
the substitution of a plaintiff is purely a matter of process. The
rules of court are designed to facilitate its process
and, as is so
often said, the rules are there for the court, not the court for the
rules. Accordingly, if the same result can
be obtained by way of a
different civil process, it does not seem to me to matter which
process is used. The important thing to
consider is whether the
objective of the process (in this instance, the substitution of
party) has been achieved.
”
The Court went on to hold that
the substitution had been valid. A similar conclusion was reached in
Holdenstedt Farming v
Cederberg Organic Buchu Growers (Pty) Ltd
2008 (2) SA 177
(C). Although the Courts have traditionally adopted
a restrictive interpretation in respect of the service of court
orders, there
is a clear suggestion that a more liberal approach
should be adopted with regard to the service of, for example, motion
proceedings,
which is the case in the present matter. See for
example,
Garrett v Lea
Hobbs Milton and Co
1979 (4) SA 922
(W), and
Hessel’s
Cash and Carry v SACCAWU and Others
1992 (4) SA 593
(E). In the present matter, as stated above, the
service of the proceedings on N Becker on 22 October 2010 had the
desired effect.
Not only did the appellant thereafter continue to
instruct N Becker to continue to correspond with the respondent’s
attorneys,
but he also later instructed Attorneys Hooyberg and
briefed Mr Pullinger to represent him at court on 7 December 2010.
[19] The objections of the
appellant to the admissibility of the affidavit of Schoeman are
without merit and profoundly spurious.
The affidavit corroborates
the version of the respondent as stated in para 5.5 of her founding
affidavit. The evidence is of
immense assistance to the Court in
determining the hotly disputed issue of the validity of the service.
The ground of appeal alleging
irregularities in the proceedings in
regard to the affidavit is without substance at all.
[20] So too, is the perplexing
ground of appeal contending that the Court allowed the respondent’s
counsel to make submissions
in the matter in the absence of the
appellant’s counsel. The matter was specifically stood down to
allow for the presence
of Mr Pullinger. These are plainly desperate
submissions which are not based on the evidence. The typed record
reflects the following
at page 1:
“
MR VAN DER BYL
:
May I ask that the matter just stand down until he (Mr Pullinger)
arrives at Court so he can address your lordship? M’Lord,
I
understand the only aspect in dispute is service, there is no
opposition on the merits, there is no opposing affidavit. The
respondent (present appellant) merely wants to complain about the
manner in which the application was served, but the address will
be
two minutes long, M’Lord.
COURT
:
Thank you matter 330 is standing down.
”
(my additions)
Counsel for the respondent
(applicant in the motion court) made the above request to stand the
matter down after he had informed
the Court that he had earlier been
contacted by Mr Pullinger who appeared for the appellant. The typed
record should properly
reflect “
Mr
Van den Berg
”
instead of “
Mr
Van der Byl
”.
[21] By way of concluding on the
issue of service, the following emerges. The motion proceedings were
served on the appellant’s
attorneys of record (N Becker) who
acted on his behalf in the divorce action and thereafter. The
appellant belatedly appointed
Attorneys Hooyberg to act on his
behalf. There was no indication that Attorneys Hooyberg served and
filed the requisite notice
of appointment as attorneys of record. The
appellant, as stated earlier in this judgment, is an officer of this
Court, not a layperson.
He must have understood his rights and the
Court procedure. There was no evidence that he suffered any
prejudice. To the contrary,
it is the respondent and the minor son
who would have been prejudiced as a result of the appellant’s
failure to comply with
his obligations to file an answer had a
postponement been allowed in consequence of the applicant’s
play. As it is the respondent
has been kept out of what is due to
her and the child due to the application for leave to appeal. The
respondent’s affidavit
was attested to on 24 January 2011 and
the present application launched on 25 January 2011. She was also
compelled to bring an
application in terms of Rule 49(11) of the
Uniform Rules of Court. The application was not proceeded with at
the hearing of the
instant application.
[22] Having found that the
service of the notice of application was adequate, and had the
desired effect of having the appellant
before court on 7 December
2010 (through legal representation), I was satisfied that a
postponement in order to allow the appellant
time to file an
answering affidavit, was not justified in the circumstances as it
would be prejudicial to the respondent, and the
minor son. The
appellant had more than adequate time to file such answering papers.
The prejudice he suffered was knowingly undertaken
by him. It is
trite law that the grant of a postponement is discretionary. The
only reason advanced in support of the application
for a postponement
was the technical contention that there had not been proper service.
In regard to the ground of appeal that
the Court failed to apply its
mind to the merits of the application, I need say very little. The
provisions of the divorce settlement
are clear and unambiguous, and
require no extraneous evidence. During the proceedings of 7 December
2010, no reasons were advanced,
save for the alleged improper
service, why the appellant elected not to deal with the merits of the
application. As stated in
the brief reasons furnished at the time of
the order, I was satisfied that the respondent had made out a case
for the relief sought
in the notice of application. The appellant
deliberately chose not to file answering papers under circumstances
where he ought
to have done so. In my view, this ground of appeal
also qualifies to be dismissed. Prior to dealing with the applicable
test
in applications of this nature, there is one other matter which,
was alluded to earlier in this judgment, which should be mentioned.
Once the present application was filed, and on 28 January 2011
(during court recess), the appellant’s attorneys, Hooyberg,
addressed a letter directly to the Court (not through the Registrar
of this Court or the Judge’s Registrar), in the following
terms:
“
We
refer to the above matter and confirm that we act on behalf of the
Respondent herein, Hendrik Louw, our client. We refer further
to the
application that was heard before you and the order granted in favour
of the applicant on 7 Desember 2010. In the light
of the order made
against our client, our client’s application for leave to
appeal such order (which was launched on 15 Desember
2010), and the
applicant’s application in terms of Rule 49(11) (which was
launched on 25 January 2011), it would be greatly
appreciated if you
could, as a matter of urgency, furnish us with written reasons for
your order of 7 December 2010.
”
Although Judges and their
judgments in our democratic order should be accessible to litigants
and their representatives, and indeed
sensitive to criticism, the
letter reeks of discourteousness. This is so not only towards the
Court, but also in respect of the
established procedure in matters of
this nature. The letter was clearly written on the instructions of
the appellant, an officer
of this Court. There is indeed nothing
wrong in a Judge receiving from a legal representative or a litigant
a request for reasons
for judgment or order. It is in fact the
manner in which it is done which can be improper. See
Ex
Parte Oppel and Another
2002 (2) All SA 8
(C) at 10a-e. By comparison, in regard to
enquiries regarding reserved judgments, in Practice Direction
2004
(6) SA 84
(T), it is said:
“
An
enquiry by an attorney wanting to know when a reserved judgment will
be delivered is to be directed to the Deputy Judge President
of each
Division. In the case of an unrepresented party such request shall
be similarly directed.
”
[23] In the instant matter,
there was no need for the blatantly irregular letter. The reasons
sought were on record already, and
easily available. This once more,
shows a disregard for the practice and rules of Court. The brief
reasons were furnished in
the presence of Mr Pullinger. Mr Pullinger
and the appellant should have applied timeously to the Court
transcribers, an independent
company, for a copy of the transcript
prior to launching the present application.
THE TEST ON LEAVE TO APPEAL
[24] The test in applications of
this nature is, and has always been, whether there are reasonable
prospects of success on appeal.
It applies with equal force in both
criminal and civil matters. The test goes back as far as
Rex
v Baloyi
1949 (1) SA
523
(A) at 524 where the Court said:
“
This
Court has laid down the rule that leave to appeal should not be
granted unless the appellant will have a reasonable prospect
of
success on appeal.
”
See also
Building
Society v De Jager and Others
1964 (1) SA 247
(O) at 247F. In
Botes
and Another v Nedbank Ltd
1983 (3) SA 27
(A) at 28C-D, Corbett JA said:
“
The
need for trial Courts to apply this test properly has been emphasized
by this Court from time to time. (See
S
v Ackerman en 'n Ander
1973
(1) SA 765 (A)
;
S v Sikosana
1980
(4) SA 559
(A)
,
in which many of the earlier decisions are referred to.) Although the
cases quoted were criminal appeals, the same test and the
same need
for the test to be applied properly applies in civil matters.
”
(
Cf
.
Normkow Administrators
(Pty) Ltd v Fedsure Health Medical Scheme
2005
(1) SA 80
(W) at 82-83.)
CONCLUSION
[25] For all the reasons stated
herein, as well as the brief reasons given
ex
tempore
, I conclude
that there are plainly no reasonable prospects of success on appeal
in regard to all the grounds of appeal. The application
for leave to
appeal falls to be dismissed with costs.
ORDER
[26] In the result, the
following order is made:
The application for leave to appeal is dismissed with costs.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPELLANT E L THERON
INSTRUCTED BY HOOYBERG ATTORNEYS
COUNSEL FOR THE RESPONDENT J P VAN DEN BERG
INSTRUCTED BY SCHOEMAN ATTORNEYS
DATE OF HEARING 4 MARCH 2011
DATE OF HEARING 30 MARCH 2011