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[2022] ZAFSHC 293
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Christo Strydom Nutrition v Univeristy of The Free State (LTA 2433/2019) [2022] ZAFSHC 293 (1 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No.: LTA 2433/2019
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CHRISTO
STRYDOM NUTRITION
Applicant
[1]
and
THE
UNIVERSITY OF THE FREE
STATE
Respondent
[2]
Coram:
Opperman,
J
Date
of hearing:
14
October 2022.
Judgment:
1
November
2022.
The reasons for judgment were handed down electronically by
circulation to the parties’ legal representatives by email
and
release to SAFLII on 1 November 2022. The date and time for hand-down
is deemed to be on 1 November 2022 at 15h00.
Summary:
Application
for
Leave
to Appeal
JUDGMENT
[1]
This is an application for leave to appeal against an order made on
18 July 2022.
I ordered as follows:
[26]
ORDER
1.
The exception
is upheld with costs on both defences.
2.
The
respondent/defendant
[3]
is
granted leave to amend the pleadings to remove the cause of
complaint(s)/exception(s) within fifteen (15) days of the granting
of
this order, failing which, leave is granted to the
excipient/plaintiff,
[4]
after
proper notice to the respondent/defendant, to apply for judgment on
the claim in the main action.
[2]
Counsel for the UFS set the scene for the application for leave to
appeal when he
conceded after due ponderance of the law that:
17.
How difficult it may be and notwithstanding
the Respondent’s desire to retain the judgment and
order
granted in its favour in respect of the so-called “first
defence”, the Respondent can but concede that such an
order is
final and that an appeal, may lay against such an order.
[3]
In paragraph 18 of his heads of argument he however maintains that
the same does not
apply to the so-called “second defence”.
His conclusion in paragraph 22 is that:
…
the
Respondent contends that while the order and judgment in respect of
the first defence is final and that the applicant is therefore
entitled to move for leave to appeal (
and
appeal such judgement and order
), this
does not apply to the so-called second defence, such judgement and
order not being final in effect and can the applicant
therefore not
move for leave to appeal at this stage in respect of such judgment
and order as it wishes to do and should the present
application for
leave to appeal in respect of such order and judgment (
in
relation to the second defence
), be
refused and the applicant be ordered to pay the costs occasioned by
the present application.
[4]
Counsel for CSN in contrast maintains that,
in casu,
a defence
was struck that was not an issue, nor was there any basis therefor.
The defendant’s prejudice is clear –
it cannot rely on
any of the two defences in the event that the court order stands. It
finally disposes of those defences.
[5]
The interest of justice prompts a finding that there are compelling
reasons that leave
to appeal should be granted on the findings
related to both defences. A piece-meal adjudication might disturb the
administration
of justice.
[6]
Counsel for both parties were in agreement that the nature of the
matter justifies
that CSN be granted leave, as appellant, to the Full
Bench of the High Court of this Division.
[7]
Costs in the instance should follow the outcome of the appeal.
[8]
ORDER
1.
Leave to appeal is granted
against the judgment and order dated 18 July 2022 (this
to include
the findings related to both defences) and to the Full Bench of this
Division.
2.
Costs to be in the appeal.
M
OPPERMAN, J
APPEARANCES
FOR
CSN
ADVOCATE S REINDERS
Chambers,
Bloemfontein
051
430 3567
JH
CONRADIE
ROSSOUWS
ATTORNEYS
119
President Reitz Avenue
WESTDENE
BLOEMFONTEIN
051
506 2551
Electronic
service:
e-service@rossouws.com
Ref:
STR74/0009 (JHC/AB)
FOR
THE UFS ADVOCATE
C SNYMAN
Chambers,
Bloemfontein
051
430 3567
LE
COMPANIE/E WARD
Phatshoane
Henney Inc
35
Markgraaff Street
WESTDENE
BLOEMFONTEIN
051
400 4000
jeanine@phinc.co.za
marvin@phinc.co.za
karryn@phinc.co.za
Ref:
UNI1-PH/0233/LC/elr
[1]
“
CSN
”
[2]
“UFS”
[3]
CSN
.
[4]
The
University of the Free State.