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[2022] ZAFSHC 349
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Hesketh v Koekemoer and Others (5900/2008) [2022] ZAFSHC 349 (14 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Case
no.
5900/2008
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the application between:
BERNADETTE
MARION HESKETH Applicant
and
HANRé
KOEKEMOER First
Respondent
JOHAN
GEORGE LOCHNER VAN DER SCHYFF Second
Respondent
KOEKEMOER
VAN DER SCHYFF CC Third
Respondent
APPLICATION
FOR LEAVE TO APPEAL
ORDER
BY:
DE KOCK, AJ
HEARD
IN TERMS OF RULE 16.5 OF THE FREE STATE PRACTICE RULES
DELIVERED:
This Order was handed down electronically and by circulation to the
parties’ representatives by e-mail and released to SAFLII.
The date and time for handing down is deemed to be 13h00 on 14
December 2022.
[1]
This is an application for leave to appeal to the Supreme Court of
Appeal against
the whole of the order granted by myself on the 28
th
April 2022.
[2]
On 20 April 2022 I dismissed the Applicant’s application with
costs.
[3]
On 18 July 2022 I provided full reasons for the order granted on the
28
th
April 2022.
[4]
On 20 September 2022 the Applicant filed a Notice of application for
leave to appeal.
[5]
Notification was given in terms of Rule 16.5 of the Free State
Practice Rules directing
the parties to file Heads of Argument and
for the application for leave to appeal to be considered in Chambers.
[6]
The Applicant filed a Notice of Motion seeking condonation for the
late filing of
the Applicant’s opposing affidavit. From
the founding affidavit to the Notice of Motion it is, however,
apparent that
the Applicant seeks condonation for the late filing of
her Heads of Argument in the application for leave to appeal.
This
application is not opposed. The Applicant’s Heads of
Argument was filed late a mere four (4) days and I am satisfied
that
none of the parties were prejudiced by such late filing of the
Applicant’s Heads of Argument. Thus in the interest
of
justice, I condone the late filing of the Applicant’s Heads of
Argument.
[7]
The Applicant’s grounds for leave to appeal are set out in
detail in her Notice
of application for leave to appeal and need not
be restated here.
[8]
In the Applicant’s Heads of Argument is alleged that I have a
close relationship
with Me Rochelle Brink and that I should have,
when reading the papers become aware thereof that it would not be in
the best interest
of justice for me to hear the application. It
is submitted that there should have been a recusal and the matter
should not
have been adjudicated by me.
[9]
I have considered all the grounds for leave to appeal as well as the
submissions in
support thereof. I have once again considered my
reasons for the order granted on the 28
th
April 2022.
[10]
I do not propose to repeat that which is set out in my reasons in as
much as that which was relevant
was dealt with in my reasons for the
order dated the 28
th
April 2022.
[11]
I am of the considered view that the application for leave to appeal
is without merits, the Applicant
does not have reasonable prospects
of success on appeal and there does not exist some other compelling
reason why the appeal should
be heard.
[12]
In the result I grant the following orders:
1.
Condonation is granted to the Applicant for the late filing of her
Heads of Argument
pertaining to the application for leave to appeal
brought under case number 5900/2008.
2.
The Applicant is ordered to pay the costs occasioned by the
application for condonation.
3.
The application for leave to appeal is dismissed with costs.
DE
KOCK, AJ
Appearance
on behalf of the Applicant
:
Attorney
:
-
RW
Africa Attorneys,
c/o
Bezuidenhouts Inc,
104
Kellner Street,
Westdene,
Bloemfontein.
Counsel
:
-
Advocate S Joubert SC and
Advocate H
Bothma.
Appearance
on behalf of the Respondents
:
Attorney
:
-
Symington & De Kok Attorneys,
169B
Nelson Mandela Drive,
Westdene,
Bloemfontein.
Counsel
for First to Third Respondents:
-
Advocate
H J Benade.