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[2011] ZAGPJHC 250
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De Wet and Others v Koen and Others (20138/2011) [2011] ZAGPJHC 250 (9 December 2011)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 20138/2011
DATE:09
DECEMBER 2011
In
the matter between
MAGDELENA
MARIA DE
WET
..................................................................................
First
Applicant
UITBLINK
OPVOEDINGKUNDIGE DIENSTE CC t/a
SKILLS
SOLUTIONS
SA
...........................................................................................
Second
Applicant
JEREMIA
JESAJA DE
WET
........................................................................................
Third
Applicant
And
HEINRICK
WILHELM
KOEN
.................................................................................
First
Respondent
ALICIA
KOEN
.........................................................................................................
Second
Respondent
ADP
CC t/a HUMAN PROGRESS
MANAGEMENT
............................................
Third
Respondent
HUMAN
PROGRESS MANAGEMENT
CC
........................................................
Fourth
Respondent
JUDGMENT
EF
Dippenaar AJ
[1]
This is an application for leave to appeal
by the First, Second and Third Applicants against the order granted
in favour of the
First to Fourth Respondents on 9 December 2011. The
Applicants were the Respondents in that application.
[2]
The Applicants seek condonation for the
late filing of their notice of leave to appeal. This application is
opposed by the First
to Fourth Respondents.
[3]
An affidavit was filed by the Third
Applicant in support of the condonation application which explains
the delays which occurred
over the festive period and consequent upon
the Applicants’ changing their legal representatives.
[4]
In the exercise of my discretion and in the
interests of fairness, I am of the view that the condonation sought
should be
granted.
[5]
In addition to the notice of application
for leave to appeal dated 25 January 2012, a further document dated
16 April 2012 was filed.
The latter document comprises some 16 pages
and contains not only the grounds on which leave to appeal is sought,
but also to an
extent, the argument on which such grounds are based.
Although not strictly in accordance with the normal format of an
application
for leave to appeal, the Applicants will not be penalised
for the format utilised in the aforesaid notices.
[6]
The grounds upon which leave to appeal is
sought, are much wider than the issues raised on the application
papers by the current
Applicants and in various instances raise
issues which, on the application papers were either not disputed, or
were common cause
between the parties.
[7]
On the application papers, the application
was mainly opposed by the Third Applicant and the First and Second
Applicants did not
object to an order being granted against them in
the terms sought, save in respect of costs. In the present
application, all three
Applicants seek leave to appeal against the
judgment and order granted.
[8]
A large portion of the Applicants’
argument to obtain leave to appeal was directed at complaining about
the poor legal advice
and assistance they had received from their
previous attorneys of record and counsel.
[9]
The Applicants’ argument was further
mainly directed at raising new issues which had either been admitted
on the application
papers or had not been raised in argument during
the original hearing of the application.
[10]
Although
in principle a legal concession can be withdrawn and an abandoned
legal contention be revived on appeal, this can only
be done where
the contention is covered by the pleadings and evidence (as
constituted by the application papers) and if its consideration
involves no unfairness to the other party. No new factual issues can
be raised.
[1]
[11]
A
party is bound by factual concessions made and may not present
argument in conflict with facts which were common cause in the
Court
a
quo
or in conflict with the parties’ common understanding as to
what exactly the issues were in the Court
a
quo
.
[2]
[12]
Although
it may be open to a party to raise a point of law which involves no
unfairness to the other party and raises new factual
issues, a point
raised for the first time on appeal on factual considerations not
fully explored in the Court
a
quo
,
should not be allowed, i.e. where an Appellant seeks to build a case
on a foundation not laid in the Court
a
quo
,
he should be precluded from doing so.
[3]
[13]
Significantly
absent in the application for leave to appeal and the condonation
application, is any explanation why the issues which
the Applicants
now seek to raise were not raised on the application papers or when
the matter was initially argued. A blanket allegation
of “lack
of performance” on the part of the Applicants’ former
legal representatives is made, without any indication
of the factual
circumstances at the time or what instructions were furnished by the
Applicants at the time to their legal representatives.
Similarly no
attempt has been made by the Applicants to meet any of the stringent
requirements relevant to receiving further evidence
on appeal,
recently enunciated in
De
Aguirar v Real People Housing (Pty) Ltd
[4]
.
[14]
The Respondents contend that various of the
issues now raised were never part of the original attack of the
Applicants in their
answering papers and that the Applicants are
attempting to make out an entirely new case, which is inconsistent
with the case made
out in the answering papers.
[15]
The Respondents further contend that they
are prejudiced by the introduction of such new issues in the current
application.
[16]
The Respondents further contend that in
restraint matters, applications are only referred to oral evidence in
exceptional circumstances
and that no such exceptional circumstances
exist in the present matter. In light of the fact that many of the
Respondents’
contentions were left unchallenged in the
answering papers, no basis existed for the referral of the matter to
oral evidence on
any of the issues raised. The Respondents further
pointed out that the Applicants never sought leave to file a further
affidavit
dealing with alleged new matter raised by the Respondents
in reply, nor did they seek to have such matter struck from the
record.
[17]
In the circumstances, based on the facts
placed before me in the current application, I am not persuaded that
the Applicants have
demonstrated that another Court may reasonably
come to a different finding on the matter. The application for leave
to appeal must
accordingly fail.
[18]
IT IS ORDERED
1)
That condonation is granted for the late
filing of the notice of application for leave to appeal.
2)
That the application for leave to appeal is
refused with costs.
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing : 8 June 2012
Date of
judgement : 29 June 2012
For Applicants
: Adv GM Young
: Potgieter,
Penzhorn & Taute Inc
For
Respondents :Adv J Bauwer
: Van Gaalen
Attorneys
[1]
Alexcor
Ltd v The Richtersveld Community,
2004 (5) SA 460CC
at 477C
[2]
AJ
Shepherd Edms Bpk v Santam Versekeringsmaatskappy Bpk,
1985 (1) SA
399A
at 413D-415G; F & I Advisors Edms Bpk v Eerste Nasionale
Bank van Suiderlike Afrika Bpk, 1999 (1) SA 515; Filta-Matix
Pty Ltd v Freudenberg & Others,
[1997] ZASCA 110
;
1998 (1) SA 606
SCA
[3]
Naude
v Frazer,
[1998] ZASCA 56
;
1998 (4) SA 539
SCA at 558A-E; Ras NNO v Van der Meulen,
2011 (4) SA 17
SCA at 22B-C; Administrator Transvaal v Theletsane,
1991 (2) SA 192A
at 195F-196E and 200G
[4]
2011
(1) SA 16
SCA, paras 9-12, pp19D-20E