About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 270
|
|
Rolko CC t/a World Time Machine and Another Luxco Importers (Pty) Ltd (A5045/2019) [2020] ZAGPJHC 270 (18 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEAL CASE NO:
A5045/2019
COURT
A QUO CASE NO: 16479/2018
In
the matter between:
ROLKO
CC t/a WORLD TIME MACHINE
(Registration
No.
1993/029309/23)
First Appellant
ROLAND
MARTIN KOPEL
(ID
No.
[…])
Second Appellant
and
LUXCO
IMPORTERS (PTY) LTD
Respondent
JUDGMENT
STRYDOM
J (BAQWA J AND BHOOLA AJ CONCURRING):
Introduction
[1]
This is a full court appeal against the
refusal by the court
a quo
to
rescind a default judgment obtained by the respondent against the
first and second appellants arising from the appellants’
failure to file a notice to defend.
[2]
The appeal came before this court pursuant
to leave to appeal being granted by the Supreme Court of Appeal on 16
August 2019.
[3]
Default judgment was obtained in respect of
a claim (the main claim) by the respondent for goods, namely luxury
watches, sold and
delivered in terms of a written credit agreement
entered into between the first appellant and the respondent.
[4]
The second appellant signed a deed of
suretyship, incorporated in the written agreement, in terms of which
he rendered himself liable
on demand for all moneys due by the first
appellant to the respondent.
[5]
Before this full court there was only
appearance on behalf of the second appellant as the first appellant
has gone into liquidation
subsequent to the court
a
quo’s
order being granted. The
court was informed that the first appellant will abide by the
decision of this court.
[6]
The appellants applied for condonation for
the late serving and filing of the appellant’s heads of
argument and practice note.
This application was not opposed
and at the hearing of this matter such condonation was granted.
Factual matrix and
chronology
[7]
On or about 30 May 2018, the respondent (as
plaintiff) served a summons on the appellant wherein it claimed the
amount of R91,027.49
plus interest and costs pursuant to watches
being sold and delivered to the appellant. In the summons it is
alleged that:
7.1
On 25 February 2005, the first appellant
and the respondent concluded a written agreement in terms of which
the second appellant,
representing the first appellant, signed and
accepted the respondent’s credit application which incorporated
its trading
terms and conditions and a suretyship by second
respondent in favour of respondent. (hereinafter referred to as the
“written
agreement”)
7.2
In terms of the deed of suretyship, the
second appellant bound himself as surety and co-principal debtor, in
solidum, for the due
and punctual payment of all moneys which may now
or in the future become due and payable by the first appellant to the
respondent.
7.3
The first appellant fell into arrears with
its payment obligations to the respondent in terms of the written
agreement as a result
of which the respondent claimed the amount of
R91,027.49 plus interest and costs.
[8]
On or about 31 May 2018, the appellant’s
attorney drafted a notice to defend on behalf of the appellants.
This notice,
in terms of the Rules of this Court, (“the Rules”)
should have been filed on or before 13 June 2018. The notice
was not filed within the time limit.
[9]
On 15 June 2018, the respondent obtained a
default judgment against the appellants for payment of the amount of
R91,027.49 together
with interest and costs.
[10]
On 18 June 2018, 3 court days after the due
date, the appellants filed their notice of intention to defend. Only
thereafter, on
22 June 2018, the appellants became aware of the
default judgment that had already been obtained against them.
[11]
Considering that the default judgment was
already granted, the appellants had to apply for a rescission of this
judgment within
the time period of 20 days prescribed in Rule
31(2)(b) of the Rules. The cut-off date for filing of the
rescission application
would have been 23 July 2018.
[12]
The application for rescission of the
default judgment was filed on 31 July 2018 also after the date
required.
[13]
The condonation application and the
rescission application were dismissed on 27 November 2018 by the
court
a quo
.
The written reasons as well as the judgment on the application for
leave to appeal delivered by the court
a
quo
stated that the court delivered an
oral judgment which was read into the record. This judgment did not
form part of the record before
us. After a notice of appeal was
filed against the judgment and order, a request was made for reasons
for judgment which
was delivered on 13 February 2019. These were the
written reasons for judgment before this full court.
Judgment of the court
a
quo
[14]
The court
a
quo
found that the appellants did not
show good cause to obtain an order to rescind the default judgment.
It was found that the
appellants did not establish a
bona
fide
defence against the respondent’s
claim and failed to provide satisfactory explanations for the late
filing of the notice of
intention to defend as well as for the late
filing of the application for rescission of judgment. The court
a quo
further
made an adverse costs order against appellants pertaining to an
irregular step taken by them which will be dealt with later
in this
judgment.
[15]
The appellants appeal was aimed at each one
of these findings.
Legal requirements for
rescission of a judgment
[16]
The
requirements for an application for rescission of a default judgment
under Rule 31(2)(b) has been stated by our courts
[1]
to be as follows:
16.1
The applicant must give a reasonable
explanation for his default. If it appears that his default was
wilful or that it was
due to gross negligence the court should not
come to his assistance.
16.2
His application must be
bona
fide
and not made with the intention of
delaying the plaintiff’s claim.
16.3
He must show that he has a
bona
fide
defence to the plaintiff’s
claim.
[17]
It is sufficient if he makes out a
prima
facie
defence in the sense of setting
out averments which, if established at the trial, would entitle him
to the relief asked for.
He need not deal fully with the merits
of the case and produce evidence that the probabilities are actually
in his favour.
[18]
The
wilful or negligent nature of the defendant’s default is one of
the considerations which the court takes into account
in the exercise
of its discretion to determine whether or not good cause is shown.
[2]
[19]
The
reasons for the applicant’s absence or default must be set out
because it is relevant to the question whether or not his
default was
wilful. The explanation for the default must be sufficiently
full to enable the court to understand how it really
came about, and
to assess the applicant’s conduct and motives.
[3]
[20]
In
Silber
supra,
the Appellate Division held that
“
good
cause”
includes
but is not limited to, the existence of a substantial defence.
It has been held that the requirement of “
good
cause”
cannot
be held to be satisfied unless there is evidence not only of the
existence of a substantial defence, but in addition, of
the
bona
fide
presently held desire on the part of the applicant for relief to
actually raise the defence concerned in the event of the judgment
being rescinded.
[4]
[21]
Before I deal with the explanation provided
by the appellants for the late filing of their notice of intention to
defend and the
lateness of the application for rescission, I am of
the view that it is convenient to deal with the question whether the
appellants
have shown a
bona fide
defence to the respondent’s (plaintiff’s)
claim.
Bona
fide
defence
[22]
The golden thread that runs through the
appellants’ grounds of appeal is premised on the proposition
that an oral agreement,
entered some 25 years ago, existed as a
separate and distinct agreement from the written agreement.
[23]
The appellant asserted that whilst it is
not disputed that second appellant signed the written agreement the
parties “
never acted in accordance
with the terms and conditions thereof, especially in circumstances of
consignment.”
The second
appellant, who deposed to the founding affidavit on behalf of the
appellants, then continued to explain how certain
watches were
delivered to first appellant by respondent on consignment. This
entailed that the respondent, from time to time,
provided the
appellant with watches to display in its shops and to offer them for
sale. The purpose of this arrangement was
to assist in the
marketing of certain watch brands. The appellants mentioned the
following brands of watches which were supplied
by the respondent to
the first appellant on consignment: Ball; TW Steele; Titan; Michel
Herbelin; and Wenger. It was asserted that
the watches that formed
the subject matter of the dispute in this matter are TW Steele and
Titan watches supplied on consignment
and not in accordance with the
written agreement. The appellants further asserted that the
respondent was willing to collect some
of the watches supplied on
consignment but refused to take back the TW Steele and Titan watches
despite the return being tendered.
The appellants then concluded that
the respondent is obliged to take back its consignment stock and that
the default judgment was
“
wrongly”
obtained.
[24]
On behalf of the respondent it was argued
that the appellant failed to establish a
bona
fide
defence on the merits. The
first line of attack was aimed at the existence of the oral
agreement. The court
a quo
found that the appellant has not provided a
convincing explanation on the existence of this agreement.
Details pertaining
to the oral agreement is in fact lacking in that
the terms of the oral agreement was not stated. It was merely
stated that
the watches would be provided to the appellant on a
consignment basis. What exactly this entailed has not been
stated.
[25]
It was further argued that the oral
agreement, which allegedly pre-dated the conclusion of the written
agreement, determined that
watches would not be sold on a consignment
basis or return basis. It was argued that the written agreement
expressly excluded
the consignment basis.
[26]
It was further argued that even if it could
be accepted that the appellant would be able to establish at trial
that an oral agreement
was concluded many years ago, there would
still not be a
bona fide
defence to the respondent’s claim as the
oral agreement cannot exist independently and simultaneously with the
written agreement.
Reliance for this proposition was placed on
the
parol evidence rule.
According
to the argument, the alleged oral agreement and any evidence in
relation to the oral agreement will contradict,
add to and modify the
meaning of the written agreement. Moreover, so the argument
went, the written agreement precludes variation
unless reduced to
writing and signed by both parties and contained in a clause
confirming that this was the whole agreement between
the parties.
This clause therefore prevents the existence of other agreements
simultaneously with the written agreement.
It was argued that
if the appellant seeks to carve out of the written agreement specific
conditions attaching to the sale of particular
watches, then the
remedy lies in rectification of the written agreement to reflect its
application only to certain goods. The written
agreement did not
distinguish between different watches and only referred to “
goods”.
As the appellant did not seek rectification of the written agreement,
there is no evidence to support the appellant’s claim
that
there exists any agreement between the parties on the terms asserted
by the appellant.
[27]
Finally, the respondent found some support
for its argument in an alleged non-variation clause contained in the
written agreement.
It was argued that the parties specifically
and deliberately bound themselves to a clause that precludes the
departure from the
terms of the written agreement, including the term
that the respondent does not supply watches to the first appellant on
consignment.
The appellants are therefore precluded by the
non-variation clause from arguing that another arrangement exists.
The respondent’s
argument was concluded by submission that the
appellants had failed to establish a bona fide defence on the merits
of the main
claim. For this reason alone, the court
a
quo
was correct in dismissing the
rescission application.
[28]
The argument advanced by the respondent was
in line with the decision of the court
a
quo
and should be considered further by
this court.
[29]
The first question to consider is whether
the alleged oral agreement could exist simultaneously and
independently of the written
agreement.
[30]
On a perusal of the terms of the written
agreement it becomes clear that the written agreement also
incorporated a deed of suretyship.
In terms of this deed of
suretyship the second appellant bound himself as surety for and
co-principal debtor in solidum with the
first appellant.
Clauses 1 to 10 deal exclusively with the terms of the deed of
suretyship. Clause 3, for instance,
reads as follows:
“
No
variation of this suretyship or any of the terms hereof shall be of
any force or effect unless reduced to writing and signed
by me/us and
confirmed by the Creditor in writing. It is agreed that this
suretyship constitutes the whole of the agreement between
the parties
hereto and that no conditions precedent suspending its operation and
no warranties, promises, representations or inducements
of whatsoever
nature have been made or given by the Creditor or any other person to
me to sign the suretyship and bind myself to
the terms thereof.”
[31]
When this clause is interpreted it is my
view that the reference to “
no
variation”
and “
the
whole of the agreement”
pertain
exclusively to the suretyship and not to the credit agreement part of
the written agreement. This clause would accordingly
not be a bar
from asserting a further agreement. Moreover, as far as the “
no
variation”
restriction is
concerned it was never the defence of the appellants that the written
agreement was varied. Their case was that
the oral agreement preceded
the written agreement by many years.
[32]
On behalf of appellants it was argued that
the written agreement only regulates the goods sold to first
appellant and not the supply
of goods on consignment. This was
countered by an argument that clause 13 excludes the sale of watches
on consignment.
[33]
Clause 13 reads as follows:
“
Goods
are not sold on a consignment basis or sale or return basis.”
[34]
This clause is not clear in its terms. Does
it mean that goods are not sold by the respondent to the first
appellant on a consignment
basis or does it mean goods are not
supplied by respondent to be sold by first appellant on a consignment
basis?
[35]
The
appellant has not provided any detail to explain the terms of the
oral agreement pertaining to consignment. According
to the
Oxford English Dictionary,
[5]
“
consign
”
means “
deliver
to someone’s custody
”;
or “
put
someone or something in [a place] in order to be rid of them”
and
“
consignment
”
means “
a
batch of goods consigned
”.
This meaning provided does not refer to the selling of goods by
someone whom has taken delivery of goods. Even when
this clause is
interpreted in context of the entire written agreement the clause
remains unclear as it determines that “
goods
are not sold on consignment
”
or sold on a “
return
basis
”.
The latter is an indication that “
sold
”
refers to the transaction between the respondent and the first
applicant and not between the first appellant and the ultimate
buyer.
The reference to “
sale
”
in this clause further renders this clause ambiguous. Accordingly, in
my view, it is not clear that the reference to “
sold
on a consignment basis
”
is a reference to the selling of the goods by the person who received
the goods.
[36]
I do not intend to decide this issue
considering my findings later in this judgment.
[37]
The question remains however whether goods
could have been supplied by the respondent for sale by the first
appellant after it has
been consigned to it, without being bought, in
terms of a prior agreement. In my view a separate oral agreement
could co-exist
with the written agreement. The written
agreement does not contain a whole agreement clause preventing a
supply of goods
between the parties only in terms of the written
agreement. As indicated hereinabove, the “whole
agreement” clause
only pertains to the suretyship.
[38]
For purposes of the rescission application
and the establishment of a
bona fide
defence, an applicant does not have to show a
probability of success in his defence. The defence only needs be
established on a
prima facie
basis.
This matter can be decided on the version of the appellants
that a prior oral agreement existed separate from the written
agreement. Having said that, I am nevertheless of the view that
the appellants have failed to establish a
bona
fide
defence even on a
prima
facie
basis. There are two reasons for
my finding.
[39]
First, the appellants in the founding
affidavit, in my view, failed to make it clear what impact the oral
agreement had on the claim
of the respondent premised on the terms of
the written agreement. The details pertaining to this alleged oral
agreement have not
been fully stated or ventilated in the founding
affidavit. The whole concept of the supply of watches on consignment
has not been
properly explained in relation to how it was
implemented. No documents were referred to and nothing was said about
the terms of
the oral agreement pertaining to any
quid
pro quo
should watches on display be
sold. The court was left to speculate and to assume that watches
supplied on a consignment basis were
supplied without monies being
paid. What would have happened when these watches were sold to third
parties and how would it have
affected the outstanding credit
balances?
[40]
Second, and even more damaging for
appellants, the second appellant on or about 13 March 2018, after the
respondent demanded payment
for watches sold to the first appellant,
wrote as follows in an email sent to respondent:
“
Please
be advised you may advise your client they can collect their stock to
off-set the debt owed to them just as they have removed
their stock
previously from Cresta Jewellers and World Time Machine Sandton.”
VTM Cresta
TWL
Steel
R89,859.54
Titan
R48,783,62
WTM East Rand Mall
Michelle
Herbelin
R29,680.66
Total Debt according to
you letters R169466.53 stock returned, R168 283.82 amount to be
paid R1182,71.
Regards
Roland Kopel”
[41]
When this letter is considered there is no
doubt that the appellants acknowledged the debt in the amount of
R169,466.53 as it is
now stated that after the set-off R1182,71
remains due. The contents of the letter were not disputed and speak
for itself.
To off-set this debt the appellants tendered the
return of these watches at a certain specific stated value. How can
the return
of goods be tender at value if these goods were not
previously bought either for cash or against an account? If it
is considered
that the appellants defence is based on the supply of
these watches on consignment, which would ordinarily entail that it
was not
sold, coupled with the fact that there is no allegation that
these consignment items were wrongly invoiced for by respondents, the
only reasonable inference to be drawn is that these watches were in
fact sold by the respondent to the first appellant. Otherwise
as stated hereinabove, how can the value of these watches be set off
against the existing debt? If bought, they could only have
been sold
by the respondent in terms of the written agreement and not the oral
consignment
[42]
During the hearing of this appeal I
specifically took up this issue with Mr Novitz acting for the second
appellant. He merely
contended that this is an issue that
should be further ventilated at a trial hearing. The problem
with this response is that
it was expected of the appellants to
provide a
bona fide
defence against the R91,027.49 claim of the respondent. It was for
the appellants to place evidence before the court to set out
their
defence. It is also telling that this email was not attached to the
appellants’ founding affidavit. Only a letter which
in vague
terms referred to an oral agreement was attached.
[43]
In the replying affidavit the appellants
raised a further defence not referred to in the founding papers. It
is now asserted that
the watches listed in annexes “JS6”
and “JS7” were never delivered. No prior correspondence
refers to this
and this allegation cannot be brought in line with
what appellants asserted in the email dated 13 March 2013 quoted
hereinabove.
Moreover, it was expected of the appellants to state
their case and defence in the founding papers. In my view this
further “defence”
is an afterthought and not raised
bona
fide.
Consequently, I am of the
view, for somewhat different reasons, that the court
a
quo
correctly concluded that the
appellants failed to show that they have
bona
fide
defences to the claim which
prima
facie
have some prospect of success.
[44]
In light of my finding that the appellants
have failed to establish a
bona fide
defence, it is not strictly necessary to consider
the explanations for the lateness of the filing of the notice of
intention to
defend and for the late filing of the rescission
application. I will nevertheless express my views in this
regard.
[45]
Pertaining to the explanation as to why the
notice of intention to defend was filed three days late, I am
prepared to accept that
this was caused due to the negligence of the
appellants’ attorney. The notice of intention to defend was
prepared one day
after the summons was served on 30 May 2018.
There is nothing placed before the court to dispute this.
[46]
The
court
a
quo
was
of the view that the explanation was lacking in any detail.
There is nothing to suggest that delivery was delayed deliberately.
When the error was discovered, it was served three court days later.
This is not an undue delay. The appellants’ attorneys
accepted that they and not the appellants were at fault. The
responsibility for the delivery of a notice of intention to
defend
rested upon the appellant’ attorney whose confirmatory
affidavit was annexed. His confirmation that it was not
served
as a result of a fault on his office is in my mind a sufficient
explanation. Factually, he signed the notice of intention
to
defend on 31 May 2018 with the intention that it be delivered.
However, it was not, and the appellants cannot be held
responsible
for this oversight. The delay in the service of the notice of
intention to defend was too short to have expected
of the appellants
to follow whether this document was filed. They had authorised their
attorney to accept service and to enter
an appearance to defend on
their behalf. As such, there was nothing further for them to do
at that stage.
[6]
[47]
The explanation for the late filing of the
rescission application after there was already a late filing of the
notice to defend
is on a different footing and is unconvincing and
lacks particularity. On 22 June 2018 the appellants became
aware that a
default judgment was entered against them. This
would mean that by 23 July 2018 the rescission application should
have been
launched. Part of the explanation for the delay is that
second appellant went to Russia to watch the Soccer World Cup. The
second
appellant does not state when he went to Russia but he said
that he returned on 18 July 2018. Five further days remained
before 23 July when the rescission application had to be served. To
cover this period he merely stated that he travelled internally
and
made reference to a funeral which he had to attend on 27 July 2018.
No explanation has been provided what transpired
between 18 July 2018
and 23 July 2018. Eventually the rescission application was
filed on 31 July 2018.
[48]
I am in agreement with the court
a
quo
that the reasons advanced by the
appellants are not satisfactory and opaque. No date has been
provided as to when the second
appellant left the country.
There is also no account for the days between 18 July to 27 July,
except to state that the second
appellant had travelled internally
and had to attend a funeral service in Cape Town. In my view
condonation should not have
been granted for the late filing of the
application for rescission of the judgment.
[49]
Accordingly, it is my view that the
appellants have not shown good cause for a rescission and the
application was correctly dismissed
with costs by the court
a
quo.
The irregular step costs
order
[50]
What remains is to consider is whether the
costs order pertaining to the alleged irregular step was correctly
made by the court
a quo
in
its judgment refusing leave to appeal. To consider this cost order it
should be considered whether the filing of the appellants’
notice for application for leave to appeal dated 7 December 2018
constituted an irregular step.
[51]
Apart from the cost order the court
a
quo
never made an order that the filing
of the first notice of application for leave to appeal constituted an
irregular step. The court
a quo
only
came to this conclusion in his written leave to appeal judgment.
[52]
What transpired is the following: On 27
November 2017 the court
a quo
made
its order dismissing the rescission application with costs. It is
unclear from the record to what extent reasons for the order
were
read into the record when the order was made. In the respondent’s
irregular step application it was asserted that the
judgment was
handed down. In the judgment it was stated that the “reasons
for my order were read into the record.”
A similar statement
was made in the judgment for leave to appeal. On 7 December 2018
appellants filed its first notice for application
for leave to
appeal. On 14 December 2018 the court
a
quo
was requested to provide reasons
for judgment. On the same date the respondent filed a notice of
irregular step aimed at the notice
for application for leave to
appeal. On 6 February 2019 the respondent’s application to set
aside the irregular step was
delivered. On 13 February 2019 the court
a quo
provided
reasons for judgment and on 15 February 2019 the appellants filed a
second and more comprehensive notice of application
for appeal.
[53]
What has not been explained before us is
why there was need for reasons for judgment if same were read into
the record when the
order was made on 27 November 2017? What seems to
be common cause is that the learned judge provided some reasons for
his order
when same was made. It was not a case, as contemplated in
Rule 49(1)(c), where the court
a quo,
when the order was made, indicated that
reasons for the order would be furnished on application. One can only
conclude that the
reasons read into the record were not the full
reasons.
[54]
The
appellants were entitled, pursuant to the reasons for judgment which
were provided when the order was made, to file a notice
of appeal
within the time frame stipulated in Rule 49(1)(b). The
appellants were entitled to ask for further reasons as Rule
49(1)(b)
refer to
full
reasons
apart from
reasons
.
[7]
[55]
The first notice of appeal expressly stated
that the appellants reserved the right to amend the grounds set out
therein, upon receipt
of written reasons. Such reasons were requested
timeously. Thereby the appellants made it clear that they would
consider whether
to supplement the notice of appeal once the further
reasons were received.
[56]
On behalf of the respondent it was argued
that it was not aware of the request for the provision of further
reasons. The request,
according to the judgment, was emailed to the
acting judge on 14 December 2018. Whether this email was also sent to
the respondent
is not known to this court. Even if it was not it is
unlikely that it would have made a difference as on the same day the
notice
of an irregular step was emailed to the appellants.
[57]
The first notice of application for leave
to appeal, in my view, encapsulated the main points of appeal clearly
and succinctly enough
for the respondents not to be prejudiced. The
first notice for leave to appeal was not an irregular step and the
adverse cost order
made by the court
a
quo
should be set aside. The appellants
filed no papers in this application and no cost order should be made.
Moreover, this part of
the appeal was only incidental to the main
appeal and limited court time was spent on this issue.
[58]
The following order is made:
58.1
The appeal is dismissed with costs,
including the cost of the application for leave to appeal.
58.2
The order in terms of which the appellants
were ordered to pay the costs of the Rule 30 notice, on the High
Court scale, is upheld.
No further order as to costs.
______________
R. STRYDOM
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
I agree,
______________
U. BHOOLA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
It
is so ordered,
______________
S. BAQWA
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
Date
Heard:
07 September 2020
Judgment
Delivered:
18 September 2020
Appearances:
For
the Appellant:
Adv. M Nowitz
Instructed
by:
Nowitz Attorneys
For
the Respondent:
Adv. A. Vorster
Instructed
by:
Mervyn J Smith Attorneys
[1]
See for instance
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1(SCA)
at 9E-F
[2]
Harris
v Absa Bank Ltd t/a Volkskas
2006 (4) SA 527
(T) at 530B – 531B;
Scholtz
v Merryweather
2014 (6) SA 90
(WCC) at 94F- 96C.
[3]
See
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353A.
[4]
RGS
Properties (Pty) Ltd v Ethekwini Municipality
2010 (6) SA 572
(KZD) at 575 D-G.
[5]
10
th
Ed completely revised.
[6]
The
test applied in
Salojee
and Another, NNO v Minister of Community Development
1965
(2) SA 135
(A) at p 141B – H does not apply to the appellant.
This is not a case of an inordinate delay where it could have been
expected
from the client to enquire from its attorneys how the
matter was progressing.
[7]
Rule 49(1)(b) reads: “When leave to appeal is required and it
has not been requested at the time of the judgment or order,
application for such leave shall be made and the grounds therefor
shall be furnished within 15 days after the date of the order
appealed against: Provided that when the reasons or the
full
reasons
for
the court’s order are given on a later date than the date of
the order, such application may be made within fifteen
days after
such later date: Provided further that the court may, upon good
cause shown, extend the aforementioned periods of
fifteen days.”