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[2021] ZAGPJHC 843
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Body Corporate of the Chelston Hall Sectional Title Scheme v Mohamed and Others (18/29890) [2021] ZAGPJHC 843 (28 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 18/29890
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
BODY
CORPORATE OF THE CHELSTON HALL
SECTIONAL
TITLE SCHEME
Applicant
and
FAHEEM
MOHAMED
First Respondent
THE
COMMUNITY SCHEMES OMBUD SERVICE
Second Respondent
DOMBOLO
MAKGOMO MASILELA N.O.
(IN
HER CAPACITY AS ADJUDICATOR)
Third Respondent
LEAVE
TO APPEAL J U D G M E N T
LOMBARD,
AJ
:
1.
The Applicant seeks leave to appeal against
my whole judgment, dated the 2
nd
of January 2020, in terms of which I dismissed the Applicant’s
application appealing against an adjudication order made by
the Third
Respondent, with costs.
2.
I held that the application was improperly
before me, insofar as it had not been instituted within the time
period prescribed by
Section 57 of the Community Schemes Ombud
Service Act No. 9 of 2011
(“the
CSOS Act”)
, and a basis for
condonation for the late institution thereof, had not been
established.
3.
Section 17 (1)(a) of the Superior Courts
Act of 2013
(“the
Superior Courts
Act&rdquo
;)
, prescribes that leave to
appeal may only be given, where the judge concerned is of the opinion
that:
3.1.
The appeal would have a
reasonable prospect of success; or
3.2.
There is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
4.
In addition to the
criterion of a reasonable prospect of success, the word “
would”
is used in determining the conclusion to which the Judge must come,
before leave to appeal can be granted.
5.
The
use of the word “
would”
in
Section 17
, has raised the bar of the test that now has to be
applied to the merits of the proposed appeal, before leave should be
granted.
[1]
6.
It
has been held that an applicant for leave to appeal now faces a
higher and more stringent threshold, in terms of the Act, compared
to
the provisions of the Supreme Court Act of 1959.
[2]
7.
The Applicant premised its application on
Section 57 of the CSOS Act.
8.
Section 57 (2) of the CSOS Act peremptorily
prescribes that an appeal against an order must be lodged within
thirty days after the
date of delivery of the order of the
adjudicator.
9.
Applying section 4 of the Interpretation
Act No. 33 of 1957
(“the
Interpretation Act”)
, the
envisaged thirty day time period, comprises of calendar and not Court
days.
10.
It is apparent from a calculation of the
relevant time period, that the Applicant failed to deliver the
application within thirty
calendar days.
11.
Consequently, the Applicant’s
assertion that I incorrectly found that it had conceded the late
delivery, takes the matter
no further.
12.
In
his answering affidavit
[3]
, the
First Respondent correctly took issue with the late delivery of the
application.
13.
The Applicant failed to amend its notice of
motion and to apply for leave to supplement its founding affidavit,
for purposes of
both requesting condonation and setting out the basis
for such request, in response; or to launch a separate condonation
application.
14.
Instead,
and impermissibly in reply, the Applicant merely states that little
to no prejudice has been suffered by the Respondents
due to the late
institution of this application, whilst the Applicant will suffer
immense prejudice, should the adjudication order
be allowed to
stand.
[4]
15.
The
Applicant further avers in reply that it will “…
be
just, fair and equitable for the Honourable Court to condone the late
filing of the application”
.
[5]
16.
It
is trite that a party cannot make out its case in reply.
[6]
17.
I remain satisfied that I was unable to
grant condonation for the late delivery of the application, without
an application for condonation,
which sets out a full explanation for
the late delivery of this application.
18.
Without
an application for condonation, I was unable to understand how the
delay came about, for purposes of assessing the Applicant’s
conduct and motives.
[7]
19.
The Applicant relied on the decision of
PEARL KLOBERIE v ABSA BANK LIMITED &
OTHERS (7264/2013) [2013] ZAGPJHC (16 AUGUST 2013)
,
which references the decision of
MCGILL
v VLAKPLAS BRICKWORKS (PTY) LIMITED
1981 (1) SA 637
,
in asserting that a litigant can apply for condonation informally
from the bar.
20.
Both these decisions are distinguishable
from the case at hand, insofar as:
20.1.
A basis had been set out for condonation in
the founding affidavits;
20.2.
The respondents had the benefit of
considering and responding to these averments; and
20.3.
Resultantly,
the respondents were not prejudiced.
[8]
21.
I am not satisfied that the appeal has
reasonable prospects of success or that some other compelling reason
why the appeal should
be heard, including conflicting judgments on
the matter under consideration, exists.
22.
The First Respondent requested that I
dismiss the application for leave to appeal with costs on an attorney
and client scale, premised
in part, on the Applicant’s delay in
prosecuting the application for leave.
23.
The First Respondent was entitled to enrol
the application for leave to appeal for hearing, when the Applicant
did not do so. The
First Respondent however elected not to do so.
24.
I am not convinced that a punitive costs
order is warranted in the circumstances.
25.
In the premises, I grant an order in the
following terms:
25.1.
The application for leave to appeal is
dismissed; and
25.2.
The Applicant is ordered the pay the costs
of the application for leave to appeal.
Date
of hearing:
18 March 2021
Judgment
handed down on:
28 June 2021
Appearances:
Counsel
for the Applicant:
G Hardy
Attorneys
for the Applicant:
Dewey Hertzberg Levy Inc.
Counsel
for the First Respondent: S Bhyat
Attorneys
for the First Respondent: Hajibey-Bhyat Inc.
No
appearance for the Second and Third Respondents
[1]
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen – Unreported
decision, LCC Case No LCC14R/2014 dated 3 November 2014,
cited with
approval by the full Court in The Acting National Director of Public
Prosecution v Democratic Alliance – Unreported
decision, GP
Case No 19577/09 dated 24 June 2016, paragraph 25
[2]
Notshokovu
v S – Unreported Decision, SCA Case No 157/15 dated 7
September 2016
[3]
Paginated
pages 82 – 83, paragraphs 28 - 32
[4]
Paginated
page 114, paragraphs 24.3 and 24.4
[5]
Paginated
page 114, paragraph 24.5
[6]
Hart
v Pinetown Drive-in Cinema (Pty) Ltd
1972 (1) SA 464
(D) and other
related cases
[7]
Silber
v Ozen Wholesalers (Pty) Limited
1954
(2) SA 345
(A) at 353A
Laerskool
Generaal Hendrik Scoeman v Bastian Financial Services (Pty) Limited
2012 (2) SA 637
(CC)
at 640H – I
[8]
See
paragraphs [10] and [11] of the KLOBERIE decision