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[2019] ZAGPPHC 18
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Boshoff and Another v Ryanzac Properties (Pty) Ltd and Others (84068/16) [2019] ZAGPPHC 18 (5 February 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
-DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED.
CASE NO: 84068/16
5/2/2019
In
the matter between:
JACOBA
BOSHOFF
1
st
Applicant
DIRK
CORNELIUS DU
TOIT
2
nd
Applicant
And
RYANZAC PROPERTIES (PTY)
LTD
1
st
Respondent
THE MEC FOR EDUCATION,
GAUTENG
2
nd
Respondent
BEREA PARK INDEPENDENT
HIGH SCHOOL CC
(INVOLUNTARY
LIQUIDATION)
3
rd
Respondent
(In
the application for leave to appeal)
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
AC BASSON, J
[1]
This
is an application for leave to appeal against my
ex
tempore
judgment dated 21 June 2018.
[2]
In
that application this court refused to rescind a default judgment
handed down on 8 March 2012. The reasons for my order are set
out in
the
extempore
judgment.
[3]
In
respect of this court's finding that the applicants were in wilful!
default, it was submitted that it was reasonable for the
applicants -
as laypeople - to have ignored the summons and rather try and
negotiate with the respondents. There is no merit in
this contention.
The applicants contended that they did not want to get involved in a
legal battle with the respondent. This is
not an acceptable excuse
for ignoring a summons.
[4]
Secondly, regarding the finding that the suspensive condition was
fulfilled, the applicants
submitted that this allegation did not form
part of the particulars of claim and hence there is a triable issue.
There is no merit
in this submission. The plaintiff relied on the
signed deed of suretyship in the particulars of claim. It was for the
defendant
(the applicants) to have pleaded to the allegations
contained in the particulars of claim which they neglected to do as
they have
wilfully decided not to defend the matter.
[5]
In
deciding whether to grant leave to appeal, this court has to take
into account the provisions of
section 17(1)(a)(i)
of the
Superior
Courts Act, 10 of 2013
. The legal position now is that leave to
appeal may only be granted where the court is of the opinion that the
appeal would have
reasonable prospects of success in respect of its
findings. I am not persuaded that the applicants have reasonable
prospects of
success on appeal and the application therefore falls to
be dismissed.
[6]
The
lease agreement provides for costs "on a scale as between
attorney and own client"
[1]
.
A costs order on this scale is therefore warranted.
Order:
The
application for leave to appeal is dismissed with costs on a scale as
between attorney and client.
AC BASSON
JUDGE OF THE HIGH COURT
Appearances:
For
the applicants:
AdvJ Roux SC
Instructed
by:
Day Incorporated
For
the respondents:
Adv GT Awakoumides
Instructed
by:
Mark Efstratiou
Incorporated
[1]
Clause [29] of the Deed of Lease.