Summary of Judgment

1. Introduction

The proceedings were an application for leave to appeal brought in the High Court of South Africa, Free State Division, Bloemfontein. The applicant sought leave to appeal against an earlier judgment of the same court in which the applicant’s application for rescission had been dismissed with costs.

The parties were identified in the report as M v M (with personal details redacted). The applicant in the leave to appeal proceedings was the unsuccessful rescission applicant, and the respondent was the opposing party in the rescission application.

As to procedural history, the court had previously handed down a judgment on 12 May 2022 dismissing the rescission application with costs. The present application for leave to appeal was determined on written arguments (heads of argument delivered on 20 June 2022 and 28 June 2022), without oral hearing, by agreement between the parties. The leave to appeal judgment was delivered electronically on 26 July 2022.

The general subject-matter of the dispute concerned whether the rescission application had been instituted within a reasonable time and whether the applicant had provided an adequate explanation for a delay of nearly seven months. The judgment further engaged with the proper approach to leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013, in circumstances where rescission was refused primarily on the basis of delay and insufficient explanation.

2. Material Facts

The court relied on a limited set of material facts relevant to the leave to appeal enquiry, centred on the timing of the rescission application and the content of the founding papers.

It was common cause, as reflected in the earlier rescission judgment (and reiterated in this leave to appeal judgment), that the rescission application was launched only after a lapse of nearly seven months. The court treated this lapse of time as the primary factual feature underpinning the refusal of rescission, and therefore as the primary factual premise for the leave to appeal enquiry.

The court further relied on the fact that the applicant’s founding affidavit did not set out, with sufficient fullness, an explanation for the period of delay (apart from a lack of knowledge), and in particular was silent on what happened after 22 July 2021, when the last correspondence was exchanged between the parties.

A further fact treated as material was that an explanation advanced in the leave to appeal proceedings—namely that the rescission application could only be brought after receipt of a valuation report, and that it was brought shortly after the December/January recess—was not contained in the founding affidavit. The court treated this explanation as having been raised only in the replying affidavit, after the omission had been identified.

The court accepted that the applicant alleged, in broad terms, that the respondent had “gone behind the applicant’s back”. However, it treated that allegation as not materially explaining the substantial delay before instituting rescission proceedings.

3. Legal Issues

The central legal questions were directed at whether leave to appeal should be granted under section 17(1)(a) of the Superior Courts Act 10 of 2013. The court was required to determine whether the contemplated appeal would have reasonable prospects of success, or whether there was some other compelling reason why the appeal should be heard.

Within that framework, the dispute required evaluation of whether another court would likely reach a different conclusion on the earlier findings that the rescission application was not brought within a reasonable time, and that the applicant had failed to provide a sufficiently full explanation for the delay.

The issues were primarily concerned with the application of legal standards to facts, rather than the determination of primary factual disputes. In particular, the court dealt with the application of the “reasonable time” requirement for rescission (under the approach adopted in the rescission judgment), the relevance of the 20-day period in Rule 31(2)(b) as a guiding indicator, and the principle that an applicant generally stands or falls by the averments in the founding affidavit.

The enquiry also involved an evaluative judgment about the sufficiency of the explanation for delay and the implications of inadequacy, including the relevance (or irrelevance) of prospects of success in the absence of a reasonable explanation.

4. Court’s Reasoning

The court began by identifying the governing standard for leave to appeal in section 17(1)(a) of the Superior Courts Act 10 of 2013. It noted that the test for leave to appeal requires that the appeal would have reasonable prospects of success, or that some other compelling reason exists for the appeal to be heard. The court endorsed the authority explaining that the statutory wording reflects a raised threshold compared to the earlier formulation that leave could be granted where another court might come to a different conclusion.

In addressing the applicant’s first ground of appeal, the court considered the criticism that it had treated the 20-day period in Rule 31(2)(b) as a yardstick, and had reasoned that there was no principled reason why a common-law rescission applicant should have more time than an applicant proceeding under the rule. The court rejected the characterisation that it had treated the 20-day period as decisive. It referred to its earlier reasoning (in paragraph 17 of the rescission judgment) that what is “reasonable” depends on the circumstances of each case, and that the 20-day period serves only as guidance and a starting point, rather than an overriding factor.

The court then emphasised that the rescission application had failed because the applicant did not provide a sufficiently full and detailed explanation for the nearly seven-month delay. It accepted the general proposition that where an explanation is sufficiently adequate and candid, courts should be slow to deny an applicant the opportunity to have a defence heard. However, it held that this principle did not assist the applicant on the facts because the explanation placed before the court did not account for the lengthy period that elapsed before launching rescission proceedings.

A significant part of the court’s reasoning concerned pleading discipline in motion proceedings. The court accepted the respondent’s submission that an applicant must generally stand and fall with the case made out in the founding affidavit, and that the founding affidavit in this matter did not address the lengthy delay. The court further noted that the contention that the applicant was awaiting a valuation report was not advanced in the founding affidavit, but appeared only in the replying affidavit after the omission was identified. The court treated this as an inadequate basis to disturb the earlier conclusion that the delay was unexplained.

In dealing with the applicant’s reliance on the merits of the defence and counterclaim, the court accepted the respondent’s submission that it was not necessary for the applicant to prove the defence at that stage, but that the applicant was required to disclose a bona fide defence which, if proved at trial, would entitle the applicant to relief. The court nonetheless relied on the principle (as expressed in Chetty v Law Society, Transvaal) that without a reasonable explanation for the delay, prospects of success are immaterial, and conversely, without prospects of success, even a good explanation cannot justify condonation. On the facts before it, and given the absence of a “full, detailed and accurate account” of the delay, the court concluded it could not find that the rescission application was brought within a reasonable time.

Finally, the court indicated that it had considered the remaining grounds of appeal and was satisfied that the earlier judgment adequately dealt with them. It was not persuaded either that another court would reasonably reach a different conclusion, or that there existed compelling reasons for an appeal to be heard.

5. Outcome and Relief

The court dismissed the application for leave to appeal to the full bench of the Free State Division. The dismissal was accompanied by an order that the application was dismissed with costs.

The order recorded that leave to appeal was sought against the judge’s judgment “granted on the 21st of April 2022”, while the body of the judgment described the earlier rescission judgment as having been handed down on 12 May 2022. The leave to appeal application was dismissed notwithstanding this description of the earlier judgment date.

Cases Cited

Van Heerden v Cronwright & others 1985 (2) SA 342 (T).

Acting National Director of Public Prosecution & others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions & Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016).

The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 others LCC 14R/2014 (3 November 2014).

Roopnarain v Kamalapathy and Another 1971 (3) SA 381 (D) (at 390F–391D as quoted in the judgment).

Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) (at 765A–C as quoted in the judgment).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)(a).

Rules of Court Cited

Uniform Rules of Court, Rule 31(2)(b).

Held

The court held that the applicant had not shown that an appeal would have reasonable prospects of success as required by section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, nor that there was any other compelling reason for the appeal to be heard.

It further held that the applicant’s rescission application had been correctly dismissed because it was not brought within a reasonable time, and because the applicant failed to provide a sufficiently full explanation for the nearly seven-month delay, particularly where the founding affidavit was silent on material periods and the valuation-report explanation was raised only later in reply.

The court held that the reference to the 20-day period in Rule 31(2)(b) was not treated as dispositive but as guidance, and that the decisive consideration remained the absence of an adequate explanation for the delay.

LEGAL PRINCIPLES

Section 17(1)(a) of the Superior Courts Act 10 of 2013 sets a heightened threshold for leave to appeal, requiring that the appeal would have reasonable prospects of success or that some other compelling reason exists for the appeal to be heard.

In rescission-related time-delay assessments, what constitutes a reasonable time depends on the circumstances of the case; the 20-day period in Rule 31(2)(b), while not directly applicable to all proceedings, may serve as an indicative guide and starting point when considering reasonableness.

In motion proceedings, an applicant generally stands and falls by the case made out in the founding affidavit, and material explanations for delay are expected to appear there rather than being introduced only in reply.

The principle articulated in Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) was applied to the effect that without a reasonable explanation for delay, prospects of success become immaterial, and that both an adequate explanation and prospects of success are ordinarily required for condonation-type relief in this context.