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[2022] ZAECMHC 43
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Durascaff CC v Essilfie-Appiah (3330/2019) [2022] ZAECMHC 43 (18 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
NOT
REPORTABLE
Case
No: 3330/2019
In
the matter between:
DURASCAFF
CC
Applicant
and
GEORGE
ESSILFIE – APPIAH
Respondent
JUDGMENT
Govindjee
J
Background
[1]
The applicant instituted action against the
respondent claiming payment for hired goods. Summons was served on 19
September 2019
and was defended. When the respondent failed to plead,
a notice of bar was served. This was met with a notice in terms of
Uniform
Rule 30, alternatively, Uniform Rule 30A, on the basis that
the particulars of claim had not been properly signed and was
irregular.
[2]
The applicant’s attorneys at the time
(‘Shamla Pather Attorneys’) failed to remove the
irregularity or to take
any other step. The matter was enrolled by
the respondent and the particulars of claim were declared irregular
by this Court on
10 December 2019 (‘the Griffiths J order’).
The applicant was afforded a period of ten days from this date to
remove
the irregularity, failing which the respondent was granted
leave to apply on the same papers for the dismissal of the claim.
The
irregularity was still not removed, resulting in an
application to dismiss the action (‘the dismissal application’)
some six months later, which was granted on 9 June 2020 (‘the
Dukada AJ order’).
[3]
The applicant claims that it was never
informed of the Griffiths J order by Shamla Pather Attorneys and only
became aware of this
on 3 November 2021. By that time, the mandate of
Shamla Pather Attorneys had been terminated. The applicant was
uncertain about
the status of the action. Its new legal
representatives communicated with correspondent attorneys and,
eventually, the representatives
of the respondent (on 20 December
2021, 12 January 2022 and 18 January 2022). Only on 19 January 2022
did it become clear to the
applicant that the action had been
dismissed with costs. An application for rescission of judgment was
launched on 16 February
2022.
[4]
The applicant lays the blame for this
situation squarely on Shamla Pather Attorneys, and argues that, in
these circumstances, the
application for rescission has been launched
timeously. It seeks to re-enter the action, amend its particulars of
claim and prosecute
the action to finality.
[5]
The respondent denies that he breached any
contract with the applicant or that he owes any money premised on an
alleged breach.
He argues that the applicant had chosen its own
representatives freely, that his representatives had pointed out the
irregularity
and that the Griffiths J order had been ignored, despite
being served on Shamla Pather Attorneys. Five months later, an
application
to dismiss the claim was served in terms of the Uniform
Rules. Again, there was no response and a judgment dismissing the
action
was obtained. The respondent submits that there must be limits
to a litigant’s ability to escape the consequences of the
conduct of its legal representatives, and the applicant should not
succeed in claiming the relief sought.
Rescission: Uniform
Rule 42(1)
[6]
There are three ways in which a judgment
taken in the absence of one of the parties may be set aside, namely
in terms of Uniform
Rule 31(2)
(b)
,
in terms of Uniform Rule 42(1) or in terms of the common law. Uniform
Rule 31(2)
(b)
is irrelevant for present purposes.
[7]
As
to rescission in terms of Uniform Rule 42(1), courts have a
discretion whether to grant an application for rescission under this
subrule, which involves a procedural step to ‘correct
expeditiously an obviously wrong judgment or order’.
[1]
Uniform Rule 42(1)
(a)
refers to rescission of ‘an order or judgment erroneously
sought or erroneously granted in the absence of any party affected
thereby’. Courts have accepted, in general terms, that a
judgment is ‘erroneously granted’ if there existed at
the
time of its issue a fact of which the court is unaware, which would
have precluded the granting of the judgment. In other words,
had the
court been aware of such a fact it would have been induced not to
grant the judgment.
[2]
[8]
A
judgment to which a party is procedurally entitled cannot be
considered to have been granted erroneously within the meaning of
this subrule, even though the court may not have been aware of
certain facts at the time of granting the judgment.
[3]
Importantly, the courts have consistently refused rescission in terms
of this rule where there was no irregularity in the proceedings
and
the party in default relied on the negligence or physical incapacity
of his attorney.
[9]
Put
differently, an order is ‘erroneously granted’ if it was
legally incompetent for the court to have made such an
order, if
there was an irregularity in the proceedings or if the court was
unaware of facts which, if known to it, would have precluded
it from
a procedural point of view from making the order.
[4]
What is effectively being rescinded is the procedure in terms of
which the judgment was granted, and therefore, by necessary
implication,
also the judgment.
[5]
By contrast, a judgment to which a party is procedurally entitled
cannot be considered to have been erroneously granted by reason
of
facts of which the judge who granted the judgment, as they were
entitled to do, was unaware.
[6]
The Griffiths J
order
[10]
Counsel for the applicant, submitted in
heads of argument that the Griffiths J order was unusual given that
the applicant had been
afforded the opportunity to remove the
irregularity within ten days of the ‘granting of the Order’,
as opposed to after
service of the order. As there had been no
attempt to serve the order within ten days after it had been granted,
the applicant
could not comply within the prescribed time period. In
addition, it was argued that neither Rule 30 nor Rule 30A provide for
dismissal
of a claim. As a result, so the argument goes, the Dukada
AJ order was erroneously sought or granted.
[11]
That argument overlooks the sequence of
events and the nature of the order issued by Griffiths J. The learned
judge was faced with
an application in terms of Uniform Rule 30
launched during November 2019. That application included, as a
supporting document,
a ‘notice in terms of Rule 30
alternatively Rule 30A’. There is no suggestion on the papers
that the various associated
notices were not served on the
correspondent attorneys of the applicant’s attorneys of record.
As already indicated, the
Griffiths J order held that the particulars
of claim were irregular and the applicant was afforded ten days ‘…
from
the date of grant of this order to remove the irregularity,
failing which the Applicant be granted leave to make an application
on the same papers duly amplified for the dismissal of the
Plaintiff’s claim’.
[12]
The
respondent relied upon Uniform Rule 30 in its application. Uniform
Rule 30 gives a court wide power in cases where an irregular
step has
been taken. It may set aside such a step and grant leave to amend ‘or
make any such order as to it seems meet’.
In terms of
subrule (3), it was open to Griffiths J, having declared the
particulars of claim to be irregular, to grant the
applicant an
opportunity to remove the irregularity, as the learned judge did. It
was within the discretion of the court to add,
upon consideration of
the material before court and with due regard to fairness, that the
respondent was entitled to apply on the
same papers duly amplified
for the dismissal of the claim, in the event that the irregularity
was not removed within a period of
ten days. That order was clear,
even though it may have been unusually crafted.
[7]
It cannot be said to be erroneous.
[8]
It has not been the subject of any appeal and remained binding in the
absence of any decision to set it aside. It also does not
fall within
the narrow band of orders considered invalid by reason of having been
made without jurisdiction.
[9]
The effect of
‘dismissal’ of an action
[13]
As
with the application that served before Griffiths J, the dismissal
application was served on the correspondent attorneys chosen
by the
applicant’s attorneys of record. There is no dispute in this
respect. Uniform Rule 4(1)
(aA)
provides
authority for this:
[10]
‘
Where
the person to be served with any document initiating application
proceedings is already represented by an attorney of record,
such
document may be served upon such attorney by the party initiating
such proceedings.’
[14]
The founding affidavit to the dismissal
application summarised the events leading up to the Griffiths J
order. It added that the
respondent had taken the additional step, on
6 March 2020, of addressing correspondence to the applicant’s
legal representatives
bringing the existence of the Griffiths J order
to their attention and enclosing a copy. It was emphasised that
Griffiths J had
granted leave to the respondent to approach the court
in the event that the particulars of claim remained unamended, and
that the
respondent was suffering prejudice by the applicant’s
persistent non-compliance. On the strength of these papers, Dukada AJ
granted the order dismissing the applicant’s action, including
the costs of the main action and of the dismissal application.
[15]
What
is the effect of a judgment dismissing an action? At the conclusion
of a trial, a court may grant judgment outright in favour
of either
party, or it may give absolution from the instance.
[11]
Dismissal of an action has been equated with the latter:
[12]
‘
Thus
a person may be discharged from the instance, though he is not freed
from the action, as when a plaintiff does not appear on
the due day,
and the defendant thereupon is by virtue of the default able to
obtain what has already been called, and will again
be called
“absolution from the instance”, with effect that he is
discharged free of costs from the present ventilation
of the claim,
but can still be summoned and sued afresh.”’
[13]
[16]
Cilliers
et
al
suggest
as follows:
[14]
‘
As
pointed out, the right of a defendant to apply to be absolved from
the instance if the plaintiff does not appear when the trial
is
called, is in accordance with Roman-Dutch law. Although the rule only
refers to non-appearance when a trial is called, there
is no reason
why a respondent would not have the right to similarly apply for
absolution when the applicant does not appear when
an opposed
application is called. It is submitted that a court, in exercising
its inherent jurisdiction, would adopt such a convenient
and sensible
procedure.’
[17]
The
authorities go beyond non-appearance ‘when the trial is
called’. In
Municipality
of Christiana v Victor
,
[15]
a magistrate had entered judgment in the following terms: ‘Case
dismissed with costs’. On appeal, the court was asked
to decide
whether that order was equivalent to judgment of absolution or to
judgment for the defendant. Innes CJ, on behalf of
the full court,
held that ‘… where a case is dismissed as a penalty for
failure on the part of the plaintiff to comply
with a discovery
order, he is entitled to bring his action again, after payment of
costs.’
[18]
In
Becker
v Wertheim, Becker & Leveson
,
[16]
a judgment dismissing a plaintiff’s claim was held to be a
judgment of absolution from the instance. Similarly, in
Eldred
v Van Aardt & Bell
,
[17]
the court held as follows:
‘
It
is clear that the dismissal of an action cannot as a general rule be
regarded as a final judgment on which a defence of
res
judicata
might be based, but that it is
equivalent to a decree of absolution from the instance.’
[19]
The
upshot of this is that the respondent was only ‘discharged free
of costs from the present ventilation of the claim’.
The
respondent was not completely freed from the action and could still
have been summoned and sued afresh.
[18]
This tempers the seemingly drastic consequence of a court exercising
its discretion to bring a matter to finality in the absence
of one of
the parties, with potential implications for the constitutional right
to have access to the courts.
[19]
[20]
It cannot be said that the Dukada AJ order
was obviously wrong or that there was a fact of which that court was
unaware which resulted
in an erroneous order being issued. The
respondent was procedurally entitled to approach the court in terms
of Uniform Rule 30
and, having secured the Griffiths J order, was
procedurally entitled to request an order dismissing the plaintiff’s
action.
There were no irregularities in the procedure and it was not
legally incompetent for Dukada AJ to dismiss the action. The
respondent
was procedurally entitled to that judgment and the fact
that the court would have been unaware that the applicant’s
legal
representatives had not conducted themselves properly, and that
they would not take steps to apply to rescind that order timeously,
cannot change that position.
[21]
A
good illustration of the application of these principles is evident
in
Athmaram
v Singh
.
[20]
In this case the applicant’s failure to respond to an
interlocutory application to compel compliance with a previous court
order justified the judgment that was subsequently granted. An
attorney’s clerk had erred by filing correspondence from the
applicant without any response. When the respondent brought an
application for dismissal of the applicant’s defence, the
clerk
again filed the document without more. The applicant’s defence
had been dismissed and judgment entered against him.
That judgment
could not be labelled ‘erroneously granted’ and could not
be rescinded in terms of Uniform Rule 42(1).
The same conclusion was
reached in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
,
[21]
where a filing error in attorneys’ offices was held not to
amount to a mistake in the proceedings. The same rationale applies
in
this instance and there is no basis for this court to exercise its
discretion to rescind in terms of this rule.
[22]
Common law rescission
[22]
In
terms of the common law, a judgment can be set aside on various
grounds, including where judgment has been granted by default.
An
application for rescission on this basis must be brought within a
reasonable time and sufficient cause for rescission must be
shown.
[23]
The courts
generally expect an applicant to show good cause (a) by giving a
reasonable explanation for their default; (b) by showing
that the
application is made bona fide; and (c) by showing that they have a
bona fide claim which prima facie has some prospect
of success.
[24]
The court nevertheless retains a discretion which must be exercised
judicially after a proper consideration of all the relevant
circumstances.
[25]
A reasonable
explanation
[23]
The applicant’s erstwhile attorneys
failed to amend the particulars of claim to remove the irregularity
raised in the respondent’s
notice dated 11 November 2019. The
applicant acknowledges that they took no action at all. When the
Griffiths J order was issued
on 10 December 2019, the respondent’s
attorneys brought this to the attention of their opponents, who
remained supine. The
applicant was not informed of these developments
by its attorneys and avers that it had no knowledge of what had
transpired. The
dismissal application was only heard some months
later, on 19 June 2020. The applicant fails, in its founding
affidavit, to explain
its extent of interest and involvement in the
litigation during all this time. It appears to have relied heavily on
its insurer
(‘CGIC’) to pursue the matter on its behalf,
and states that ‘I understand that during 2020 and 2021, CGIC
experienced
certain difficulty with getting updated reports from the
Plaintiff’s erstwhile attorneys and consequently terminated the
mandate of these attorneys’. The applicant adds, without any
confirmatory affidavit being filed, that CGIC requested regular
updates from Shamla Pather Attorneys, to no avail.
[24]
In fact, the applicant’s present
legal representatives received instructions to act only on 12 October
2021, and the applicant
became aware of the Griffiths J order on 3
November 2021, almost two years after the Uniform Rule 30 notice had
been issued. The
Dukada AJ order only came to the applicant’s
attention on 19 January 2022. Throughout this time ‘…
the Plaintiff
was under the impression that its erstwhile attorneys
were proceeding to trial’. The applicant says that it was not
in wilful
default, having been ‘… unable to provide any
instruction to its erstwhile attorneys as it was not aware of the
irregularity
or any application brought against it by the Defendant’.
It argues that this application has been brought within a reasonable
time from the date it became aware of the Dukada AJ order.
[25]
An
attorney’s negligence does not always constitute a ‘reasonable
explanation’.
[26]
In
Colyn
v Tiger Food Industries Ltd
the
SCA noted as follows:
[27]
‘
I
have reservations about accepting that the defendant’s
explanation of the default is satisfactory. I have no doubt that
he
wanted to defend the action throughout and that it was not his fault
that the summary judgment application was not brought to
his
attention. But the reason why it was not brought to his attention is
not explained at all. The documents were swallowed up
somehow in the
offices of his attorneys as a result of what appears to be
inexcusable inefficiency on their part. It is difficult
to regard
this as a
reasonable explanation
.
While the Courts are slow to penalise a litigant for his attorney’s
inept conduct of litigation, there comes a point where
there is no
alternative but to make the client bear the consequences of the
negligence of his attorneys (
Saloojee
and Another NNO v Minister of Community Development
).
Even if one takes a benign view, the inadequacy of this explanation
may well justify a refusal of rescission on that account
unless,
perhaps, the weak explanation is cancelled out by the defendant being
able to put up a
bona fide
defence which has not merely some prospect, but a good prospect of
success (
Melane v Santam Insurance Co
Ltd
).’ (Footnotes omitted.)
[26]
The
attorney is the chosen representative of a litigant. It has been
held, in the context of an application for condonation for
non-compliance with a Uniform Rule, that a litigant should generally
not be absolved from the ordinary consequences of such a
relationship, irrespective of the circumstances that resulted in the
failure to comply.
[28]
A
litigant is not always excused for their own passivity when a legal
representative has been briefed to attend to a matter. As
the court
held in
Saloojee
and Another v Minister of Community Development
:
[29]
‘
If,
as here, the stage is reached where it must become obvious also to a
layman that there is a protracted delay, he cannot sit
passively by,
without so much as directing any reminder or enquiry to his attorney
and expect to be exonerated of all blame; and
if, as here, the
explanation offered to this Court is patently insufficient, he cannot
be heard to claim that the insufficiency
should be overlooked merely
because he has left the matter entirely in the hands of his attorney.
If he relies upon the ineptitude
or remissness of his own attorney,
he should at least explain that none of it is to be imputed to
himself…’ (References
omitted.)
[27]
A
reasonable explanation for default is a self-standing requirement for
rescission. Failure to satisfy this aspect may, on its own,
be fatal
to the application:
[30]
‘
[T]he
circumstance that there may be reasonable or even good prospects of
success on the merits would satisfy only one of the essential
requirements for rescission of a default judgment. It may be that in
certain circumstances, when the question of the sufficiency
or
otherwise of a defendant’s explanation for his being in default
is finely balanced, the circumstance that his proposed
defence
carries reasonable or good prospects of success on the merits might
tip the scale in his favour in the application for
rescission. But
this is not to say that the stronger the prospects of success the
more indulgently will the Court regard the explanation
of the
default. An unsatisfactory and unacceptable explanation remains so,
whatever the prospects of success on the merits…’
(References omitted.)
[28]
The explanation offered by the applicant
for its default suffers from serious defects. There is no
accountability for the applicant’s
own failure to pursue any
enquiries as to the status of the matter over an excessive period.
CGIC is fingered as the driving force
behind the litigation, yet no
details are provided regarding the steps it took during this
prolonged period, and no supporting
affidavit from CGIC is offered.
The court is left to speculate as to the extent of the ‘regular
updates’ CGIC requested
from Shamla Pather Attorneys and its
thought process and actions when these requests were fruitless. The
negligent conduct of Shamla
Pather Attorneys was, it seems, allowed
to fester because of the inactivity on the part of both the applicant
and its insurer.
In these circumstances, the point has been reached
where the applicant is unable to escape the omissions of its chosen
legal representatives.
The case on the
merits
[29]
Strictly
speaking that is the end of the matter and a basis for refusing
common law rescission.
[31]
Even accepting that the poor explanation might be cured by strong
prospects of success does not change the outcome. This is because
it
cannot be said, on the papers before me, that the applicant enjoys
anything beyond prima facie prospects of success.
[30]
The particulars of claim reflect that the
respondent entered into a credit agreement with the applicant
following the hire of goods.
A deed of suretyship was signed by the
respondent. The applicant avers that it has complied with its
obligations and that the respondent
defaulted on his payment
obligations. The respondent never pleaded to the particulars of claim
because of the course the matter
took. He says, in his answering
affidavit, that he does not owe the plaintiff any money, did not
breach any agreement with the
applicant and has not been
unjustifiably enriched. The merits of the action are otherwise not
addressed by the parties.
[31]
I
have no difficulty in concluding that the applicant has made out a
prima facie case on the merits, and that the application is
brought
bona fide. Averments are set out which, if established at trial,
would have entitled the applicant to the relief sought.
This might
have sufficed had the explanation for the default been sufficiently
full. The applicant would then have been justified
in not dealing
more fully with the merits of the case.
[32]
But
where
the applicant has provided a poor explanation for default, a good
claim is required to compensate for this.
[33]
[32]
The
court in
Melane
v Santam Insurance Co Ltd
in
fact referred to ‘strong prospects’ being required in
circumstances where a delay was lengthy.
[34]
Instead of attempting to establish this, the applicant pays almost no
attention to this aspect in its application for rescission.
There is
no separate heading in the founding affidavit dealing with this issue
and the applicant failed to reply to the respondent’s
answering
affidavit, which refuted the merits of its claim.
[33]
As
such, the applicant has failed to establish a bona fide claim which
has good prospects of success, resulting in rescission in
terms of
the common law being unjustified.
[35]
Conclusion
[34]
It remains the court’s task to
consider all the relevant facts and circumstances applicable, and to
exercise a judicial discretion
following the application of a
flexible approach centred on the principles of justice and fairness.
[35]
I
have considered, inter alia, the respondent’s interests in
bringing finality to the matter and the consequences of this
application being unsuccessful,
[36]
together with the other factors highlighted above. In essence, the
explanation for the applicant’s default is wholly unreasonable.
While it may be accepted that the applicant’s claim is brought
bona fide and establishes a prima facie case on the merits,
the
applicant has not succeeded in demonstrating good prospects. In the
circumstances there is no basis to rescind the order of
Dukada AJ,
either in terms of Uniform Rule 42 or the common law.
Order
[36]
The following order will issue:
1.
The application is dismissed with costs.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:15
September 2022
Delivered
:18
October 2022
Appearances:
Counsel
for the Applicant: Adv DC
Botma
Instructed
by:
Smith Tabata Attorneys
12
St Helena Road
Beacon
Bay
East
London
043 703
1839
Counsel
for the Respondent: Adv LL Sambudla
Instructed
by:
Luzipho Attorneys
26
Cnr Victoria and Madeira Street
First
Floor Steve Motors Building
Mthatha
047 531
1511
tlluziphoattorneys@telkomsa.net
[1]
See
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471E-F.
[2]
See
Nyingwa
v Moolman NO
1993
(2) SA 508
(Tk) at 510D-G.
[3]
Lodhi
2 Properties Investment CC v Bondev Developments (Pty) Ltd
2007
(6) SA 87
(SCA) (‘
Lodhi
’)
at 94E.
[4]
See
Promedia
Drukkers & Uitgawers (Edms) Bpk) v Kaimowitz
1996 (4) SA 411 (C).
[5]
National
Pride Trading 452 v Media 24
2010
(6) SA 587
(ECP) para 27.
[6]
Lodhi
op cit fn 3 paras 25, 27.
[7]
See
the comments of Plasket J, on behalf of a full bench, in
Ikamva
Architects CC v MEC for the Department of Public Works and Another
[2014] ZAECGHC 70 paras 23, 24.
[8]
See
Athmaram
v Singh
1989
(3) SA 953
(D) at 956I-957B.
[9]
See
MEC
for the Department of Public Works and Others v Ikamva Architects
and Others
[2022] ZAECBHC 13;
[2022] 3 All SA 760
(ECB) para 16.
[10]
See
Athmaram
v Singh
op
cit fn 8 at 956G-H.
[11]
Uniform
Rule 39(3) provides: ‘If, when a trial is called, the
defendant appears and the plaintiff does not appear, the defendant
shall be entitled to an order granting absolution from the instance
with costs, but may lead evidence with a view to satisfying
the
court that final judgment should be granted in his favour and the
court, if so satisfied, may grant such judgment’.
[12]
AC Cilliers, C Loots and H C Nel
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
(5
th
Ed) (2009) (Juta) p 924. Also
see
Makayiseni
v Musarurgwa
1947 S.R. 160 at p162 as cited in
Bulford
v Bob White’s Service Station
(Pvt)
Ltd
1973 (1) SA 188 (RA).
[13]
Huber’s
Jurisprudence
of my Time
vol 2 ch 16 s 3 (translated by P Gane) as quoted in Cilliers
et
al
op cit fn 12 at 918-919, fn 41.
[14]
Cilliers
et
al
op cit fn 12 p 920.
[15]
Municipality
of Christiana v Victor
1908
TS 1117
at 1118-1119.
[16]
Becker
v Wertheim, Becker & Leveson
1943
(1) PH F.34 (A).
[17]
Eldred
v Van Aardt & Bell
1924
SWA 79 at 82.
[18]
Huber
op cit fn 13 s 4;
Corbidge
v Welch
(1892) 9 SC 277
at 279. Also see the remarks of Jones J in
Vena
and Another v Vena and Others
[2009] ZAECPEHC 26;
2010 (2) SA 248
(ECP) para 8.
[19]
Cf
MEC
for the Department of Public Works and Others v Ikamva Architects
and Others
[2022] ZAECBHC 13;
[2022] 3 All SA 760
(ECB) paras 17, 18.
[20]
Athmaram
v Singh
op
cit fn 8. Cf
Standard
Bank of SA Ltd v Van Dyk
2016 (5) SA 510
(GP), dealing with exceptions and Uniform Rule 26.
[21]
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) (‘
Colyn
’)
para 9.
[22]
See
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) (‘
Chetty
’)
at 764I-J. Also see
Freedom
Stationery (Pty) Ltd and Others v Hassam and Others
2019 (4) SA 459
(SCA) para 19.
[23]
De
Wet and Others v Western Bank Ltd
1979
(2) SA 1031
(A) at 1042.
[24]
Colyn
op
cit fn 21 para 11;
Ferris
and Another v Firstrand Bank Ltd
2014 (3) SA 39
(CC) para 24. In
Promedia
Drukkers & Uitgawers (Edms) Bpk v Kaimowitz and Others
op
cit fn 4 at 418A-D, the court had no difficulty in assuming that, in
the case of dismissal of an action, as opposed to the
dismissal of a
defence, the second element would be satisfied if it was shown that
the applicant had a bona fide claim carrying
prima facie prospects
of success.
[25]
See
HDS
Construction (Pty) Ltd v Wait
1979
(2) SA 298
(E) at 300–301B.
[26]
Ferris
v Firstrand Bank Ltd
op
cit fn 24 para 25.
[27]
Colyn
op
cit fn 21 para 12.
[28]
Saloojee
& Another v Minister of Community Development
1965
(2) SA 135
(A) at 141D-F.
[29]
Ibid
at 141F-H.
[30]
Chetty
op
cit fn 22 at 767J-768C;
Government
of the Republic of Zimbabwe v Fick and Others
2013 (5) SA 325
(CC) at 350D.
[31]
Chetty
op
cit fn 22 at 765D-E; 768C-D.
[32]
See
Marais
v Standard Credit Corporation Ltd
2002 (4) SA 892
(W) at 895H-J.
[33]
Carolus
v Saambou Bank Ltd; Smith v Saambou Bank Ltd
2002
(6) SA 346
(SE) at 349B-C.
[34]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
at
532E: ‘Or the importance of the issue and strong prospects of
success may tend to compensate for a long delay.’
[35]
Colyn
op
cit fn 21 at para 13. Also see
Government
of the Republic of South Africa v Fick
op
cit fn 30 at para 89.
[36]
See
Liberty
Group Limited t/a Liberty Life v K&D Telemarketing and Others
[2020] ZASCA 41
paras 14-15.