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2024
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[2024] ZAFSHC 24
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Greater Bloemfontein Taxi Association and Another v Mafisa (3235/2022) [2024] ZAFSHC 24 (1 February 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 3235/2022
In the matter between:
GREATER
BLOEMFONTEIN TAXI ASSOCIATION
1
s
t
Applicant
MOFEREFERE
SHADRACK MAPHISA
2
nd
Applicant
and
RETSHIDISITSWE
ISAAC MAFISA
Respondent
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
01 FEBRUARY 2024
[1] On
13 April 2023, the applicants filed and served two applications for
leave to appeal and the condonation
for the late filing of the
application for leave to appeal. The application for condonation is
opposed on the basis that it does
not comply with the provisions of
the Uniform Rules of Court and that there are no prospects of
success.
[2] On
23 January 2023, I confirmed a Rule Nisi in terms of which:
2.1 the
respondent was interdicted from preventing the applicant’s
vehicle from loading at the Taxi Rank known
as Majakathata Taxi Rank
in line with a permit with number: LFSLB44201/5 held by the applicant
for the vehicle in question.
2.2 the
respondent was interdicted from instructing or affecting or causing
any driver of the Applicant to vacate the
Taxi rank where he was
supposed to load.
[3] It
is this order that the applicants appeal against.
[4]
The deponent to the first applicant’s
affidavit to the condonation application (the only one in the
application), alleged to have been authorised to depose to an
affidavit on behalf of the second respondent, confirmed that the
applicants received the judgment confirming the rule nisi on/about 24
January 2023.
[1]
The applicants
were dissatisfied with the court order and felt that they should
launch an appeal after funds were available.
[2]
On 31 January 2023, the first applicant’s executives held a
meeting that discussed,
inter
alia
,
the judgment. It was agreed that the matter should be pursued on
receipt of funds as they were low at the time.
[3]
The funds were only available after 1 April 2023.
[4]
The delay was due to the non-availability of funds.
[5]
[5]
The applicants were of the view that the matter raised important
questions of law in that the Free State
Department of Transport and
its Board issued the respondent with an irregular permit and,
furthermore, the court refused to grant
an order for the joinder of
the parties. The grounds of appeal raised in the notice of appeal
were nothing but a rehash of the
arguments in the previous
application.
[6]
Rule 49(1)(b) of the Uniform Rules of Court provides that when leave
to appeal is required and it has not
been requested at the time of
the judgment or order, the application for such leave shall be
furnished within fifteen days after
the date of the order appealed
against provided that the court may, upon good cause shown, extend
the said period of fifteen days.
[7]
I was referred to the following
dicta
in
Grootboom
v National Prosecuting Authority and Another
[6]
:
“
In
this court the test for determining whether condonation should be
granted or refused is the interests of justice. If it
is in the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do
so, it will not be
granted. The factors that are taken into account in that inquiry
include:
(a) the
length of the delay;
(b) the
explanation for, or cause for, the delay;
(c) the
prospects of success for the party seeking condonation;
(d) the
importance of the issue(s) that the matter raises;
(e) the
prejudice to the other party or parties; and
(f) the
effect of the delay on the administration of justice.
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.”
[8]
The respondent argued that the applicants had not
shown good cause for the condonation for the late filing
of the
appeal. They failed to appeal within the stipulated timeframe
stipulated by the rules. They were represented in this appeal
by the
same representative who appeared for them in the urgent application.
The delay in filing the leave to appeal was excessive
taking into
account that the parties were present in the application proceedings.
The applicants do not say that they did not have
funds but allege
that their funds were low. As businessmen and taxi owners, they
received money daily. The second applicant sued
in his personal
capacity, could not rely on the other members of the organization for
money as he is a businessman in his own right.
The second applicant’s
attitude seems nonchalant as he neither filed a supporting or
confirmatory affidavit.
[9]
Besides, the respondent stood to suffer prejudice due to the long
litigation history which was characterized
by the first applicant’s
non-compliance with court orders. The respondent stood to suffer
financial ruin as every time that
his taxi was prevented from doing
business, he was left without income and exposed to losing his asset
or the motor vehicle which
was financed by the bank.
[10]
The order being appealed against was the confirmation of the rule
nisi, that is, to finally interdict those persons
who sought to
interfere with the rights of the respondent, and not to determine any
rights. The defences raised by the applicants
were irrelevant and
were not issues before the court. The grounds raised in the notice of
appeal are flimsy and have already been
dealt with in the judgment.
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that the appeal would have a reasonable
prospect
of success; or there is some other compelling reason why the appeal
should be heard, including conflicting judgments on
the matter under
consideration.
There are neither prospects of
success in this appeal nor good cause shown for the late filing of
the appeal.
[11] Consequently, I make
the following order:
Order:
Both applications for the
late filing of the application for leave to appeal and the
application for leave to appeal are dismissed
with costs.
_________________
MHLAMBI,
J
On
behalf of the Applicant: Mr MJ Ponoane
Instructed
by:
OMM
Attorneys Inc.
58
General Dan Pienaar
Bloemfontein
On
behalf of the Respondent: Adv. NM Bahlekazi
Instructed
by: Lwandile
Nkontso Inc. Attorneys
54
Kellner Street
Bloemfontein
[1]
Para
5.1 of the FA.
[2]
[2]
Para
5.2 of the FA.
[3]
Paras
5.3 and 5.4 of the FA.
[4]
Para
5.7 of the FA.
[5]
Para
5.10 of the FA.
[6]
2014
(2) SA 68
(CC) at para 50.