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[2023] ZAFSHC 232
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Body Corporate of Boschenvaal Riverfront Lodges v Minepower Liquor (Pty) Ltd (A163/2022) [2023] ZAFSHC 232 (14 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: A163/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
THE
BODY CORPORATE OF
BOSCHENVAAL
RIVERFRONT LODGES
Appellant
And
MINEPOWER
LIQUOR (PTY) LTD
Respondent
CORAM:
MHLAMBI J
et
CRONJé,
AJ
HEARD
ON:
24 APRIL 2023 AND
5 JUNE
2023
DELIVERED
ON:
14
JUNE 2023
JUDGMENT
BY:
P R CRONJé,
AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 11H00 on 14 June 2023.
I
INTRODUCTION
[1]
The Appellant is a Body Corporate established in terms of Section
2(1) of the Sectional Title
Schemes Management Act, 8 of 2011, as
amended. It issued summons in the Magistrate’s Court for
Sasolburg wherein it
sought payment of R184 716.16 for
administrative expenses and insurance premiums.
[2]
On 31 August 2018, prior to institution of the action, the Appellant
referred a dispute in respect
of the insurance premiums to the
Community Schemes Ombud Services (CSOS).
[1]
[3]
The parties requested the court
a
quo
to determine the dispute on a summary of facts.
[2]
After
action was instituted, a letter was received from CSOS dated 25
February 2020, stating:
“
Removal
from the adjudication hearing roll. The Community Schemes Ombud
Service is in receipt of an application for dispute
resolution.
The matter was set down for an adjudication hearing on 16
th
January 2019 at 11:00.
”
[3]
[4]
Subsequently, CSOS sent an e-mail stating:
“
Dear
Mr Seonelo
We
refer to the abovementioned matter which was set down with CSOS on 16
January 2020 as well as the associate correspondence.
The
parties, i.e. board of trustees and respondents reached an agreement
at the AGM from the minutes. The meeting approved
the proposal
to change the management rules of the body corporate with regard to
insurance and in so doing, accommodated all parties.
”
[4]
[5]
The Appellant states that the intention was to have a possible
amendment to the Rules effected
to the extent that individual owners
could insure their properties themselves. The Respondent on the other
hand states that a settlement
was reached and the matter became
settled.
[6]
On 12 May 2022, the Court
a quo
concluded:
“
For
reasons already conveyed to the parties, the Court finds that the
plaintiff is not entitled to claim insurance premiums from
the
defendant, as the dispute in respect thereof has been resolved and
settled as on plaintiff’s own version as early as
January 2020,
the 14
th
.
Furthermore,
summons in respect thereof was issued on the 14
th
June 2019 at a time and stage when this matter was still pending
before CSOS.
The
balance of the claim is standing over for trial to a date that can be
agreed to between the parties.
”
[5]
III
APPEALS - THE UNIFORM RULES OF COURT
[7]
Rule 50(1) of the Uniform Rules of Court provides:
“
An
appeal to the Court against the decision of a Magistrate in a civil
matter shall be prosecuted within sixty (60) days after the
noting of
such appeal, and unless so prosecuted it shall be deemed to have
lapsed.
”
[8]
Rule 50(4) provides that:
“
The
Appellant shall, within forty (40) days of noting the appeal, apply
to the Registrar in writing and with notice to all other
parties for
the assignment of a date for the hearing of the appeal and shall at
the same time make available to the Registrar in
writing his full
residential and postal addresses and addresses of his attorney if he
is represented.
”
IV
EXPLANATION FOR THE DELAY AND PROSPECTS FOR SUCCESS
[9]
It is common cause that the appeal lapsed. The test on condonation is
trite. In
Grootboom
v National Prosecuting Authority and Another
[6]
it
was held:
22.
… I agree with him that, based on Brummer
[7]
and Van
Wyk
[8]
,
the standard for considering an application for condonation is the
interests of justice. However, the concept “interests
of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the nature
of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants;
the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and the prospects
of
success. It is crucial to reiterate that both Brummer and Van
Wyk emphasise that the ultimate determination
of what is in the
interests of justice must reflect due regard to all the relevant
factors but it is not necessarily limited to
those mentioned above.
The particular circumstances of each case will determine which of
these factors are relevant.
23.
It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must
make out a case entitling it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full
explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable
enough to excuse the default.
”
[10]
The Appellant filed a request for reasons of the judgement in terms
of Rule 51(1) of the Magistrate’s
Court Rules on 17 May 2022.
The Magistrate had to reply by no later than 7 June 2022. The
Appellant eventually received the
reasons on 11 August 2022. A
Notice of Appeal was served on 27 July 2022. Thereafter engagement
took place with Gauteng Transcribers
to have the record of
proceedings transcribed.
[9]
[11]
The Notice of Motion in respect of the condonation application was
only filed in this Court on 15 November
2022 and served on the
Respondent on
10
January 2023
.
[12]
In its condonation application, with reference to its prospects for
success, the Appellant states:
“
4.1
It is submitted that the Applicant has good prospects for success in
the appeal.
4.2
It is submitted that it is in the interest of justice that
condonation be granted.
”
[10]
[13]
The Respondent was out of time with filing its answering affidavit.
It also seeks condonation for late
filing of its answering
affidavit. The Appellant abides by this Court’s decision
whether condonation should be granted
to the Respondent. I am
satisfied that the Respondent made a case for condonation.
[14]
In the Respondent’s answering affidavit it states that:
“
In
this application for condonation the reasonable prospects for success
on the merits have not been dealt with by the Applicant
in its
founding affidavit. The Applicant has further failed to
properly explain the delay in prosecuting the appeal, since
the
condonation application was only served on the Respondent on 10
January 2023, with no set down of the appeal in the High Court
having
been served on the Respondent, and large periods of delay being
unexplained by the Applicant.
”
[15]
The Respondent refers to
Mulaudzi
v Old Mutual Life Assurance Co (South Africa) Ltd and others
[11]
where
it was held:
“
[26]
What calls for an explanation is not only the delay in the timeous
prosecution of the appeal,
but also the delay in seeking condonation.
An appellant should, whenever he realises that he has not complied
with a rule of this
court, apply for condonation without delay. A
full, detailed and accurate account of the causes of the delay and
their effects
must be furnished so as to enable the Court to
understand clearly the reasons and to assess the
responsibility. Factors which
usually weigh with this court in
considering an application for condonation include the degree of
non-compliance, the explanation
therefor, the importance of the case,
a respondent’s interest in the finality of the judgment of the
court below, the convenience
of this court and the avoidance of
unnecessary delay in the administration of justice.”
[16]
On this
basis, the Respondent prays that the appeal be dismissed with costs.
V
CONCLUSION
[17]
It is common cause that there is no full explanation for the whole
period in which the Appellant is late.
It is also apparent from
the condonation application that the Appellant did not elaborate on
the prospects for success. On the
conspectus of all the facts, this
Court has insufficient material to grant condonation.
VI
COSTS
[18]
The Respondent should pay its own costs in respect of its condonation
application. There is no reason why
costs should not otherwise follow
the result.
[19]
I make the following order.
ORDER
1.
Condonation is granted to the Respondent for the late filing of its
answering affidavit.
2.
There is no order as to costs in respect of the Respondent’s
condonation application.
3.
The Appellant’s application for condonation for reinstatement
of the appeal and late
prosecution of the appeal is dismissed with
costs.
4.
It is declared that the appeal lapsed.
P R
CRONJé, AJ
I
agree:
MHLAMBI
J
On
behalf of the Applicant:
Adv
A Jacobs
Instructed
by:
Du
Bruyn Attorneys
Webbers
Attorneys
BLOEMFONTEIN
On
behalf of the First Respondent:
Adv.
G V Meijers
Instructed
by:
JC
Uys Attorneys
McIntyre
van der Post Attorneys
BLOEMFONTEIN
[1]
Record,
p. 39 - 42
[2]
Volume
1, p. 74 – 92; On the face of the record, the parties were in
fact not in agreement on the facts and determination
of the dispute
on stated facts (case) would probably not have been proper.
[3]
Volume
2, p. 101
[4]
Volume
2, p. 111, line 19 – p. 112, line 2. Whether such an
arrangement can be effected is debateable.
[5]
Volume
2, p. 123, line 11 - 20
[6]
(CCT
08/13)
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) (21 October 2013);
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited and
Others, National Director of Public Prosecutions and Another
v
Mulaudzi
(98/2016, 210/2015)
[2017] ZASCA 88
;
[2017] 3 All SA 520
(SCA);
2017
(6) SA 90
(SCA) (6 June 2017);
Nair
v Telkom SOC Ltd and Others
(JR59/2020) [2021] ZALCJHB 449 (7 December 2021)
[7]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
and
Others
[2000]
ZACC 3
[2000] ZACC 3
; ;
2000
(2) SA 837
(CC)
[2000] ZACC 3
; ;
2000
(5) BCLR 465
(CC)
at para 3
[8]
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007]
ZACC 24
;
2008
(2) SA 472
(CC)
[2007] ZACC 24
; ;
2008
(4) BCLR 442
(CC)
at para 20
.
[9]
Pleadings,
p. 6, para 11 – p. 11, para 40
[10]
Pleadings,
p. 11, para 41 and 42; This was not expanded on in the replying
affidavit. See para 11.1.1 of the replying affidavit
[11]
2017
(6) SA 90
(SCA) at 101 E – G para [26]; See also:
United
Plant Hire (Pty) Ltd v Hills and Others
[1976] 2 All SA 253
(A)