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[2024] ZAKZPHC 6
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Bandra Investments CC and Another v Chetwynd-Palmer and Others (17574/2022P) [2024] ZAKZPHC 6 (31 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 17574/2022P
In the matter between:
BANDRA INVESTMENTS
CC
FIRST APPLICANT
MERCHANT
MOHAMMED
SECOND APPLICANT
and
SIMON
CHETWYND-PALMER
FIRST RESPONDENT
LEGAL PRACTICE
COUNCIL
SECOND RESPONDENT
S. NAIDOO INVESTIGATOR
LPC
THIRD RESPONDENT
Coram:
Davis AJ
Heard:
26
January 2024
Delivered:
31 January 2024
ORDER
The
following order is made:
The
application for leave to appeal is refused with costs.
JUDGMENT
Davis AJ
[1]
This is an application for leave to appeal a judgment that I
delivered on 5 October
2023, with reasons handed down on 18 October
2023. I heard the matter in Pietermaritzburg, however for convenience
the parties
agreed to hear the application in Durban. I am indebted
to them for making themselves available.
[2]
Only the first applicant wishes to appeal my judgment of 5 October
2023. The second
applicant is not a party to this application.
The second and third respondent play no role in this application, and
for convenience
I will refer to the first respondent as the
respondent. The appearances are Ms Gates for the first applicant and
Mr G Campbell
for the respondent.
[3]
The
essence of my judgment, against which leave to appeal is sought, is
that I dismissed the applicants’ condonation application
after
refusing the first applicant’s earlier application for a
postponement to obtain legal representation at the eleventh
hour. The
second applicant had sought a postponement ostensibly for the
applicants
[1]
to brief counsel
in the matter. The second applicant is the sole member of the first
applicant and the central figure in all the
‘litigation’
that surrounds this matter.
[4]
The application was opposed by the respondent. After the indulgence
was refused the
second applicant declined to address the court on the
merits of the application for condonation, with the founding
affidavit being
inadequate for the purposes of condonation the
application was inevitably dismissed.
[5]
Section
17
of the
Superior
Courts Act 10 of 2013
(the
Act) regulates applications for leave to appeal from a decision of a
high court. It provides as follows:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i)
the appeal would have a reasonable prospect
of success; or
(ii)
there is some other compelling reason why
the appeal should be heard, including conflicting judgments
on the
matter under consideration;
(b)
the
decision sought on appeal does not fall within the ambit of
section
16(2)
(a)
;
and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.
[6]
Prior to the enactment of the Act, the applicable test in an
application for leave
to appeal was whether there were reasonable
prospects that the appeal court may come to a different conclusion
than that arrived
at by the lower court. The enactment of the Act has
changed that test and has significantly raised the threshold for the
granting
of leave to appeal.
[2]
The
use of the word ‘would’ in the Act indicates that there
must be a measure of certainty that another court
will differ from
the court whose judgment is sought to be appealed against.
[7]
Leave
to appeal may thus only be granted where a court is of the opinion
that the appeal would have a reasonable prospect of success,
and
which prospects are not too remote.
[3]
As was stated by Schippers JA in
MEC
for Health, Eastern Cape v Mkhitha
:
[4]
‘
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There must
be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.’
[8]
The key issue in the leave appeal application is the refusal to grant
the applicant
a postponement. In my reasons for judgment
[5]
I comprehensively dealt with the refusal of the postponement and I
stand by the reasons set out therein.
[9]
It suffices to point out that the applicants filed their application
for condonation
on 15 December 2022, the matter was set down for
hearing on the opposed roll on 13 April 2023.
[6]
The applicants as
dominus
litis
in the proceedings adopted a completely supine approach to these
proceedings.
[10]
The second applicant deposed to an affidavit in support of the
application for an adjournment
in which he stated inter alia, that he
is the sole member of the first applicant, the first applicant has
authorised him to depose
to this affidavit seeking an postponement,
and unless otherwise stated reference to himself in the singular
includes himself and
the first applicant.
[11]
In all the applications before this court and the Legal Practice
Council (LPC), the second applicant
is the person driving the
process, he has deposed to all the founding and replying affidavits,
he is without doubt the main protagonist
in all cases involving the
first applicant. This accords with the fact that he is the sole
member of the first applicant.
[12]
The explanation for the applicants’ inertia is a very weak one,
the chosen address for
service of documents in the matter failed to
forward the documents until 2 October 2023, three days before the
hearing. The notice
of set down being absent and had to be obtained.
The actual responsibility for this obviously rests with the
applicants.
[13]
There is no explanation in the affidavit of what the applicants did
to ensure that their application
proceeded, that they as
dominus
litis
had instituted and needed to prosecute. For some six months
they did nothing to take their case forward.
[14]
I dealt extensively with why the postponement was refused,
[7]
I considered the fact that this matter traversed a complaint against
the conduct of an attorney and was alive to the fact that
the
complaint concerned the legal profession and thereby attracted public
interest. I was aware that there were considerations
of fundamental
fairness and justice to be considered and that is why even during the
application for a postponement issues raised
in the papers were
traversed.
[15]
The second applicant is the sole member of the first applicant, they
cannot be described as a
person and entity who are unaware of the
manner in which the courts operate. He cannot either for himself or
on behalf of the entity
he represents legitimately claim that he is a
completely uninformed lay litigant deserving of undue leniency. He
has litigated
in the high court previously, before the taxing master
and with the LPC. He would know first hand how litigation worked in
the
courts.
[16]
I do not believe another court would have granted the postponement in
these circumstances, the
applicants were the authors of their own
misfortune.
The
purpose behind requiring litigants to obtain leave to appeal was set
out in the matter of
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
,
[8]
where
Wallis JA said that:
‘
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.’
[17]
Counsel for the first applicant has alluded to the point that the
second applicant could not
make submissions on behalf of the first
applicant in law. The second applicant elected not to address the
court on the merits of
the application for condonation, not because
he was precluded from doing so, but because he did not have the
expertise to do.
[18]
The application for a postponement was refused in respect of the
applicants for the reasons given,
whether the second applicant could
act on behalf of the first applicant did not and could not affect
that ruling. What is clear
is that the second applicant role, as the
sole member of the first applicant, in these proceedings is all
pervasive.
[19]
The second applicant is central to every aspect of this case, he
sought the postponement on behalf
of the first applicant. Once that
application was refused the matter proceeded, the applicants were
undefended with no appearance.
The result was inevitable, if the
second applicant could not represent the first applicant it would not
matter as the result is
the same. There was no appearance to pursue
the application on behalf of the first applicant and on the papers
filed in respect
of the condonation application it fell to be
dismissed with costs.
[20]
There was no argument made on behalf of the applicants’ in
respect of the condonation application.
That decision was made by the
second applicant after the postponement was refused. It was the
court, noting that the applicants
were not lawyers that decided that
it would, in the interests of justice, consider the submissions on
the papers insofar as they
pertained to the application for a
postponement and condonation. This was an indulgence to the
applicants to avoid an unfair result.
[21]
It is trite law that where an application for condonation does not
traverse the prospects of
success, then the application for
condonation might fail on that point alone.
[9]
In the application for condonation the second applicant in his
founding affidavit confines his affidavit to an explanation of the
delay in filing the review, the only mention of the prospects of
success is in a four-line paragraph shorn of any factual basis.
[10]
Consequently the founding affidavit deposed to by the second
applicant is woefully inadequate for the purpose of condonation.
[22]]
I gave detailed reasons why in this matter condonation was not
appropriate and I do not believe that
the first applicant has
formulated
a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal, on both the issue of the refusal of
the
postponement and the dismissal of the condonation application.
[23]
It was not submitted that there are any compelling reasons why an
appeal should be allowed in
the matter and I am not independently
able to conceive of one.
[24]
It follows that I am not persuaded that there is a reasonable
possibility that another court
would come to a different decision
than the one to which I came. I am of the view that this is precisely
the type of matter that
Wallis JA was referring to in
Dexgroup
,
namely, an appeal that lacks merit.
[25]
In the circumstances, the application for leave to appeal is
dismissed with costs.
Davis
A.J.
Appearances:
Counsel
for the applicant :
Ms
J Gates
Instructed by:
Hamman Attorneys
c/o 54 Chestnut
Place
Woodlands
Pietermaritzburg
Ref: Mr C Hamman
11 Aloha Park
Pitts Avenue
Uvongo,4270
Tel: 27 60 3844708
E-Mail:
info@hamannlaw.co.za
For
the respondent:
Mr
G Campbell
Instructed
by:
Simon
Chetwynd–Palmer
c/o
Stowell & Company
295
Pietermaritz Street
Pietermaritzburg
KwaZulu-Natal
Date
of hearing:
26
January 2024
Date
of judgment:
31
January 2024
[1]
See
founding affidavit of the second applicant in the application
postponement of 5 October 2023.
[2]
Mont
Chevaux Trust v Goosen
[2014] ZALCC 20
para 6,
Narainsamy
and others v Nel and others
[2020] ZAKZPHC 20 paras 9 – 13,
Public
Protector of South Africa v Speaker of the National Assembly and
others
[2022] ZAWCHC 222
para 14.
[3]
Ramakatsa
and others v African National Congress and another
[2021] ZASCA 31
para 10.
[4]
MEC
for Health, Eastern Cape v Mkhitha and another
[2016]
ZASCA 176
para 17.
[5]
Handed
down on 18 October 2023.
[6]
Indexed bundle at page 298.
[7]
See
para 15 to para 28 of the reasons of 18 October 2023.
[8]
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
[2013]
ZASCA 120
;
2013 (6) SA 520 (SCA)
para 24.
[9]
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
1994
(4) SA 705
(E) at 711D-E:
‘
The
correct approach is not to look at the adequacy or otherwise of the
reasons for the failure to file a plea in isolation.
Instead,
the explanation, be it good, bad, or indifferent, must be considered
in the light of the nature of the defence, which
is an all-important
consideration, and in the light of all the facts and circumstances
of the case as a whole. In this way the
magistrate places himself in
a position to make a proper evaluation of the defendant's
bona
fides
’.
[10]
Indexed
bundle at page 13.