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[2020] ZAGPJHC 362
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Mbita Consulting Services v Freeway Coaches (2018/31237) [2020] ZAGPJHC 362 (20 November 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
CASE
NO: 2018/31237
In
the matter between:
MBITA
CONSULTING SERVICES
Applicant
And
FREEWAY
COACHES
Respondent
JUDGMENT
(Leave
To Appeal Application)
SENYATSI
J:
[1]
This is an application for leave to appeal the Judgment granted in
favour of the respondent
on 22 August 2020.
[2]
The application for summary judgment granted on 22 August 2020 was
opposed by the
applicant in these proceedings.
[3]
Leave to appeal the judgment has been filed out of time in terms of
the rules of this
court. It’s a consequence, the applicant
seeks condonation for the late filing of this leave to appeal
application.
[4]
Further to the application for condonation of the late filing of this
leave to appeal
seeks leave to introduce further evidence into the
record before this court.
[5]
Thirdly and most importantly, the applicant seeks leave to appeal the
summary judgment
which was granted, as already stated, on 22 August
2020.
[6]
As regards to the condonation for the late filing of this application
Rule 49 (1)
(b) of the Uniform Rules of this court provides that an
applicant who requires leave to appeal shall make such an application
and
shall therefore within 15 days after the date of the order which
it seeks to appeal.
[7]
The applicant brought the application for leave to appeal on 1
November 2019 fifty
(50) days after the Judgment was granted. The
application was therefore 35 days late.
[8]
One of the factors that must be considered whenever condonation is
sought is the Applicant’s
prospects of success on the
merits.
[1]
It should be borne in mind that the grant or refusal of condonation
is not a mechanical process but one that involves the balancing
of
the competing factors. The weaker the prospects of success the less
likely the explanation of delay will be a satisfactory explanation.
However, if the prospects of success is high even if the explanation
for the delay is weak, condonation of the late filing may
be
favourably considered.
[2]
[9]
The application for condonation must, in addition give a full
explanation for the
delay which must not only cover the entire period
for the delay but must be reasonable.
[3]
[10]
Counsel for the respondent, argued that the Court order was served on
the applicant through its
attorneys after it was granted. The
applicant was not in court and its attorneys were not in court as
well.
[11]
The warrant of execution of summary judgment was served on 11 October
2019. I have not seen any
explanation of the delay from the 11
October 2019 or soon thereafter detailing why the application was not
brought. No steps are
mentioned by the applicant to prosecute the
application for leave to appeal.
[12]
The applicant simply states that it was not aware that the
application for summary judgment had
been set down on 22 August 2019.
This is highly unlikely as the applicant had attorneys who were aware
after having been duly served
with the notice of summary judgement
application. The application for summary judgment was opposed through
an affidavit signed
on behalf of the Applicant. The Applicant
contends that no advocate had been briefed to attend Court to argue
the summary judgment.
What this argument ignores is the fact that
that the notice to oppose the summary judgment had been filed
accompanied by an affidavit.
[13]
In the affidavit resisting the summary judgment the Applicant raised
the following defences:
13.1. It disputed the
amount claimed and stated that the respondent had charged a rate in
the invoices which the parties
did not agree to. It stated that the
rate the parties had agreed to was the rate which the respondent had
previously charged an
erstwhile partner of the applicant, pursuant to
a separate agreement for
……
services which amount was R1300 per day;
13.2. It stated that
the respondent breached the agreement on a number of occasions and
was therefore not entitled to
the amount claimed, and
13.3. It stated that
it had requested documents from the respondents in terms of Rule 35
(1) of the Uniform Rules of
the Court, which request had not been
answered. It suggested that it was entitled to these documents before
the summary judgment
could be granted.
[14]
The defences were dealt with by Counsel for the Respondents in this
application. During the summary
judgment application it was argued
that the claim was based on a liquidated amount in money supported by
invoices and statements
of account pursuant to an agreement. As a
consequence, summary judgment was granted.
[15]
Having considered the explanation given for the delay in prosecuting
leave to appeal and lack
of prospects of success of the appeal on
merits, I am not persuaded that condonation for late filing leave to
appeal should succeed.
[16]
The grounds of appeal are also not so clear from the papers before
me. Section 17 of the Superior
Court Act 10 of 2013 provides that in
order for this Court to grant the applicant leave to appeal the
applicant persuade this Court
that another Court will differ from its
decision in the summary Judgment. The threshold of discharging that
onus has been raised.
[4]
[17]
In terms of the heads of argument, it is patently clear that the
applicant wants to re-argue
the case. The applicant does this by
introducing new defences which were not before this Court in the
summary judgment affidavit
filed in resistance to the application.
[18]
As regards to leave to introduce further evidence into the record
before this Court in terms
of Section 18(5) of the Superior Court
Act. I am not certain how this is sought to be achieved as the
judgment is final and cannot
be re-opened for obvious reasons.
[19]
Section 18(5) of the Superior Courts Act provides as follows:
“
(5)
For the purpose of subsection (1) and (2, a decision becomes the
subject of an application for
leave to appeal or an appeal, as soon
as an application for leave to appeal is lodges with the Registrar in
terms of the order.”
[20]
The intention of section 18 of the Superior Courts Act is to suspend
the decision pending appeal.
Nowhere in the section is the provision
made to introduce new evidence.
[21]
Having considered the application for leave to appeal as contained in
the applicants affidavit,
I am of the view that the application for
leave to appeal has failed to pass the ………….as
contained
in the provisions of section 17 of the Superior Courts Act.
ORDER:
[22]
The following order is made:
[a]
Leave for condonation of late filing of the leave to appeal is
refused with costs.
[b]
Application for leave to appeal is refused with costs
ML
SENYATSI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
Case Lines. The date for
hand-down is deemed to be 20 November 2020.
Appearances:
Attorneys
for the Applicant: Mashabane & Associates Inc.
Counsel
for the Applicant: Adv. JG Smit
Attorneys
for the Respondent: Saleem Ebrahim Attorneys Inc.
Counsel
for the Respondent: Adv. S Mothiba
[1]
See
Valor IT v Premier, North West Province and Others
[2020] 3 All SA
397
(SCA) (9 June 2020)
[2]
See
United
Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) 720 E-G
[3]
See
Van
Wyk v United Hospital (Open Democratic Advice Centre as Amicus
Curiae
[2007] ZACC 24
;
2008 (2) SA 472
CC at 477 A-B)
[4]
See
S
v Nobhokova and Another
2016 ZASCA 112
(7 September 2016) at para
……