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2022
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[2022] ZANCHC 40
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Van der Merwe v Engelbrecht (2415/18) [2022] ZANCHC 40 (3 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE HIGH
COURT, KIMBERLEY)
Case
No: 2415/18
Heard
On: 28/07/2022
Delivered:
03/08/2022
In the matter between:
FREDERICK LODEWIKUS
VAN DER MERWE
Applicant
and
FRANKEL
ENGELBRECHT Respondent
Coram:
MOSES AJ
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
MOSES AJ
Introduction
1.
This is an application for leave to appeal against
my ex tempore ruling in this matter on 12 May 2021, as well as my
judgment regarding
the merits of the matter delivered on 23 July
2021, by Dr Frederick Lodewikus Van Der Merwe, the Applicant herein,
who is conducting
his litigation including this application in person
(the Defendant in the main action).
2.
This application is opposed by and on behalf of Mr
Frankel Engelbrecht, the Respondent herein, and who was the Plaintiff
in the
main action.
3.
This application was set down, pursuant to its
launching by the Applicant on or about 3 August 2021, for hearing and
arguments in
this Court for Thursday 28 July 2022. I return to the
various emailed correspondence in this regard hereunder. In the
event, it
was heard by me in open court on 28 July 2022. The
Applicant was absent, and is/was not legally represented. The
Respondent was
legally represented at the hearing by counsel, Ms
Sieberhagen, duly instructed by the instructing attorneys of record.
4.
Having read the documents filed of record,
including the various emailed correspondence exchanged between
/amongst the parties and
the Registrar of this Division, and having
heard counsel for the respondent, I was satisfied that the matter was
properly set down
for hearing and argument by the Registrar of this
Division, for 28 July 2022, at 09h00 in Court E, Kimberley High
Court, with all
the parties having been duly notified thereof.
5.
I was also satisfied that the Applicant herein,
having been duly notified of the Court date and hearing as
above-stated, had elected
not to attend the said hearing and was
seemingly awaiting the outcome of his application for leave to appeal
to be decided in his
absence. Hence the hearing proceeded in his
absence on 28 July 2022.
The Application and
subsequent emailed correspondence
6.
Before I deal with what I understand to be the
Applicant’s main contentions for leave to appeal to be granted,
I thought it
would be prudent to give some chronology since the
launching of this application until date of hearing, with reference
to the afore-stated
emailed correspondence and exchanges amongst the
parties and the Registrar, as well as other persons who are/were not
involved
in this matter.
7.
On the 3
rd
August 2021 the Applicant filed his “Urgent
Filing Notice”, wherein he refers to, and annexed, inter alia,
a “Notice
To Apply For Leave To Appeal”, an “urgent
letter dated 30 July 2021 addressed to the “Plaintiff’s
Legal
Team”, an article in the Sunday Times newspaper dated 1
August 2021, and a certified copy of an identity document of one
Louis Theunis Janse Van Vuuren.
8.
The Applicant directed an email to the Registrar,
Ms Basson on 16 February 2022, around 09h35 stating inter alia
the following:
“
Re:
Urgent: Requiring Dates For Set Down of Kimberley: Application
for Leave To Appeal Judgment: Moses AJ”
9.
The Registrar then replied in an email dated 16
February 2022 at 14h03, to the Applicant and Respondent Attorneys
(and 2 others)
acknowledging receipt of the above-stated email.
10.
The Registrar then sent an email dated 17 March
2022 to ALL the parties, the Applicant included wherein she provided
possible dates
for the hearing of the application for leave to
appeal, namely 8 April 2022, 14 April 2022 and 22 April 2022.
11.
The Respondent’s attorneys then sent an
email dated 29 March 2022 at 09h34 (by Ms Elzaan) to ALL PARTIES,
including the Applicant
and Registrar, stating that “to date Mr
Van Der Merwe has not confirmed a date for hearing of his application
for leave to
appeal”, and if he has not done so by 1 April
2022, then the Respondent “… will proceed to place his
application
for 22 April 2022 in order to have same dismissed and to
enable us to proceed with taxation herein.”
12.
The Applicant then sent an email dated 30 March
2022 around 15h58, to the Registrar, and Ms Sievers of the “Cape
Town –
Registrar of the Deputy Judge President –
Honourable Judge Goliath”, and others, including the
Respondent’s attorneys,
in reply to Respondents’ email of
29 March 2022, in essence stating that; ( emphasis in the original)
a)
these dates in April 2022, were “not
discussed with Applicant beforehand, to which I take exception,”;
b)
that he “does NOT agree, nor conceded to any
of the proposed dates and/or to have it set down by Plaintiff:
Engelbrecht’s
legal team…”
c)
that he is still awaiting a “proper Court
Documents signed by AJ Moses to the Applicant: Dr Fred Kimberley:
Application for
leave to Appeal (“ALA”)… AND “…the
legally binding, duly and properly dated signed by Moses AJ –
Court stamped – Court Document from the Acting Judge:
Judge Moses…” and
d)
alleging that the Respondent Attorneys “are
in contempt of court” and that their “…premature
planned –
unlawful and vexatious Kimberley “TAXATION”
has been set aside in terms of Superior Court Act and must then be
reported
a VEXATIOUS…”
13.
The Applicant then sent another email dated 1
April 2022 around 12h11 referring to his email below dated 31 March
2022 around 09h30,
to the Registrar and the Respondent’s
Attorneys, and others (Ms Sievers Dr Lente Van Der Merwe)
13.1 in which he refers
to “we are awaiting the outcome…” of a seemingly
consolidation application and an application
to transfer a matter (s)
regarding …”a direct nexus to ESTATE AND
SHAM-TESTAMENTARY TRUST/TRUSTEE.” (
emphasis in the
original) and
13.2 requested “…
official and legally binding, signed by AJ Moses – Court
stamped document regarding outcome
to “ALA” Application,
by the Defendant (as Applicants ALA)” and stating
“
Kindly
take note that Dr Fred does NOT agree to any application to any
dates, by the Plaintiff and/or his legal Teams.”
14.
The Registrar then sent an email dated 13 April
2022 around 08h41, to the Applicant, Dr Van Der Merwe, and to one
Elzaan of the
Respondent Attorneys and to Dr Lente Van Der Merwe
advising and stating that:
14.1 “All
communique to the Judges are routed through the Office of the
Registrar”
14.2 “The dates
(and ancillary directives) in all applications for leave to appeal
are provided by the Judges and conveyed
through the Registrar’s
Office.”
15.
The Respondent’s attorneys then sent an
email dated 26 April 2022, to the Registrar and to the Applicant, Dr
Van Der Merwe,
wherein they requested dates for finalisation of the
application for leave to appeal “soonest.”, indicating
that they
are/were not involved in any litigation by the Applicant in
Cape Town, and that that does not have any effect on the application
for leave to appeal, which in any event will be for the judge to
decide on the day of the hearing.
16.
On 7 June 2022 around 11h48 the Registrar sent an
email to all the parties concerned, including the Applicant, giving
them notice:
“As per direction of the Presiding Judge:
1.
The matter be and is hereby set down for hearing
on 28 July 2022;
2.
The matter will be hard (sic) in Court E at
09h00.”
(This is on page 1 of the
Court Bundle, received and marked “ALA2”).
17.
Pursuant to this above-stated emailed notification
by the Registrar, the Respondent’s attorneys filed and sent an
emailed
“Notice of Set- down” dated 18 July 2022, to the
Registrar and the Applicant, wherein the contents of the above-stated
emailed notification by the Registrar were basically repeated but
which the Respondent filed and served electronically, so it was
submitted by counsel for the Respondent during oral argument, “…for
clarity purpose.” Counsel for the Respondent
further submitted
that this was also done, bearing in mind the Applicant is a layperson
in law, although highly educated, is appearing
in person and/or
conducting his own case, and which was sent to him to serve as a
reminder of the hearing date for the application
for leave to appeal.
18.
There was/is no response and/or reply to the above
stated two emails from the Registrar and the Respondent’s
attorneys, by
the Applicant, until 27 July 2022, a day before this
hearing date, wherein the Applicant, in an email dated 27 July 2022,
around
14h19, and addressed to the Respondent’s attorneys, the
Registrar, and “ocj complaints” referred to his annexed
“Practice Note By Defendant”, in respect of this case.
This emailed document was handed in and received marked “ALA1.”
19.
Having perused and studied the Applicant’s
“Practice Note” in annexure ALA1, there are, to my mind,
only four
(4) aspects relevant to the determination of this
application for leave to appeal. Firstly the Applicant is suggesting
that he
never did, and still does not, agree to this hearing date set
down for 28 July 2022, and hence that: “This matter should NOT
be ALLOCATED and/or ENROLLED and be struck from the Roll, if indeed
allocated.” ( original emphasis) Secondly he is suggesting
that
since he had “lodged” his application for leave to
appeal, as referred to above, the presiding judge must henceforth
provide him with a “…Proper Formal signed and Court
stamped OUTCOMES TO DEFENDANT’S APPLICATION TO LEAVE TO
APPEAL
JUDGMENTS by an ACTING JUDGE…”( original emphasis).
Thirdly he appeared to be under the impression that the
Respondent
had set the matter down for hearing on the said date, and had
overlooked and/or ignored the emailed notice sent to all
the parties,
including himself, by the Registrar, as referred to above. Lastly it
is evident from this Practice Note that the Applicant
had indeed
received the above-stated emailed notification of the set down dated
of 28 july 2022, as well as the Respondent’s
Heads of Argument,
but that he had decided that he “the Defendant, a medical
specialist, will NOT attend any COURT PROCEEDINGS
tomorrow, as I am
scheduled to perform critical neurosurgical procedure (and will NOT
even consider any purported “postponements/costs’
AS
FURTHER EXTORTION BY Plaintiff’s will be put forward”
(emphasis in the original).
Brief evaluation and
Judgment
20.
It is clear from what has been stated and referred
to hereinabove that the Applicant, who launched this application,
late and defective
as it is, and who initially seemed to apply on an
“urgent” basis, and “urgently” requiring
dates for set
down of this application for leave to appeal my
afore-stated Ruling and Judgment, was/is the person who stubbornly
refused, to
date, to either agree to a date to set the matter down
for hearing and who refused to adhere to the set down date as
notified by
the Registrar. He has only himself to blame for not
adhering to the stated notice of set down issued by the Registrar,
and for
not being present at the hearing of his application for leave
to appeal.
21.
What is also clear from the papers before this
Court, is that the Applicant’s application for leave to appeal
is not easily
comprehensible, deviating in form and style usually
followed in practice in accordance with the Rules of Court, to the
extent that
the Respondent argued, justifiably, that the application
ought to be dismissed on the grounds of non-compliance with the Rules
of Court. Having considered Respondent’s counsel’s
submissions in this regard, and bearing in mind that the Applicant
is
a lay person insofar as the practice of law is concerned, conducting
his own case, I am of the view that such deviations and
defects as
there may be in this application, in the exercise of my discretion in
this regard, be overlooked and condoned. To my
mind this would enable
the parties and this Court to focus and concentrate on the merits of
the application, the grounds for the
application insofar as it is
discernible from the compounded and sometimes incoherent statements
by the Applicant in his papers
before Court.
22.
I this regard I agree with counsel’s
submission that only two possible grounds of appeal can be discerned
from the Applicant’s
application, namely:
22.1 that the trial
proceeded in his absence; and
22.2 that he disputes
that this Court had the necessary jurisdiction to adjudicate upon the
action.
23.
With regard to the first ground as above-stated –
that the trial proceeded in his absence –, I refer to what I
have
stated in my ex tempore ruling and in my judgment, more
particularly paragraphs 28 to 33 and paragraphs 43 to 44 thereof,
which I deem not necessary to repeat herein.
24.
In the circumstances, I found that the Applicant
was very well aware of the fact that the trial would be proceeding on
the 12
th
of
May 2021. As indicated in my ex tempore ruling and judgment, he filed
voluminous bundles of documents but elected not to be present
at the
adjudication of the trial.
25.
With regards to the second ground – the
alleged lack of jurisdiction by this Court, I have dealt with this
aspect comprehensively
to my mind, in my judgment, more particularly
paragraphs 108 and 108.1 thereof, which I similarly do not wish to
repeat herein.
26.
In the
circumstances, having regard to the applicable provisions of
section
17
of the
Superior Courts Act, no 10 of 2013
[1]
,
the Applicant must show that he has a reasonable prospect of success
on appeal. This section makes it clear that leave to appeal
may only
be given if this Court is of the opinion that the appeal would have a
reasonable prospect of success or if there is some
other compelling
reason why the appeal should be heard.
27.
In the present application I find that he
Applicant has failed to show, on the facts and in law, that he has a
reasonable prospect
of success on appeal on both the first and second
grounds of appeal referred to above. There is also no other
compelling reason
why leave to appeal ought to be granted or why the
appeal should be heard.
28.
The Respondent’s counsel has indicated that
the issue of costs is left within the discretion of this Court.
Order:
29.
In the circumstances it is ordered:
29.1 The application for
leave to appeal is dismissed.
29.2 No order as to
costs.
J.J. MOSES
ACTING JUDGE OF THE
HIGH COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
For the
Plaintiff: Adv.
A. S. Sieberhagen
Instructed
by: Engelsman
Magabane Inc.
For the
Defendant: No
appearance
[1]
Section
17.
Leave to appeal.- (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 judgements on the matter under
consideration.
(b)
The
decision sought to be appealed 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.