Summary of Judgment

1. Introduction

The proceedings were an application for leave to appeal brought in the Gauteng Division of the High Court, Pretoria. The application sought leave to appeal against an earlier interlocutory judgment delivered on 18 March 2019, in which the court granted condonation to the plaintiffs/applicants in the main action for the late delivery of their declaration, directed the first respondent to deliver a plea within a stipulated period, and ordered the applicants in that application to pay costs on an attorney-and-client scale.

The parties in the matter were Heiko Draht N.O., Marc Bradley Beginsen N.O., and Donovan Theodore Majiedt N.O. (cited as the applicants in the main proceedings) and Thlani Joseph Manqele (the first respondent in the main proceedings). The Standard Bank of South Africa and the Master of the High Court, Pretoria were also cited as the second and third respondents respectively, but there was no appearance for them in the leave to appeal proceedings.

Procedurally, the judgment of 11 July 2019 concerned only whether leave to appeal should be granted against the condonation order made on 18 March 2019. The underlying dispute in the main action was identified as litigation in which the applicants sought the termination of joint ownership in an immovable property of which the first respondent was a co-owner.

2. Material Facts

The court treated as material the fact that the earlier order of 18 March 2019 granted condonation for the applicants’ late filing of their declaration, coupled with a direction that the first respondent deliver a plea within 20 days, and a punitive cost order against the applicants in that interlocutory application.

A further material factual finding was that there was, on the court’s version, only one operative court order in the matter. The court recorded that the document relied upon by the applicants—described as a document they had been given during October 2016—was not an order of the High Court. The court accepted that confusion about which document constituted the correct order ultimately precipitated the application for condonation.

The first respondent’s challenge in the leave to appeal application was based on two contentions recorded by the court: first, that the court had found the initial document relied upon was not a court order; and second, that condonation was granted for the late filing of the declaration after the court’s order had been handed down. The court treated the question whether it had made only one order as a factual matter and indicated that the applicants’ reliance on the October 2016 document did not change the fact that it was not a court order.

The court also treated as material the nature and effect of the condonation order in relation to the broader litigation. It reasoned that granting or refusing condonation in the main action would not affect the ultimate outcome of the substantive dispute. The court further considered that refusing condonation would merely have led to unnecessary and wasted costs, because the proceedings would have had to commence de novo.

3. Legal Issues

The central legal question was whether the first respondent (as applicant for leave to appeal) satisfied the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, namely whether the appeal would have a reasonable prospect of success, or whether there was some other compelling reason for the appeal to be heard.

The dispute was framed primarily as an assessment involving the application of law to fact and the evaluation of whether another court would likely reach a different conclusion on the condonation ruling. The court also treated the underlying premise of the leave application—whether there was only one operative order and whether the relied-upon document was a court order—as involving a question of fact.

A further issue arose in relation to costs, specifically whether the leave to appeal application was of a kind warranting a costs response aimed at discouraging dilatory tactics, including whether an order of costs de bonis propriis against the first respondent’s attorney was appropriate in the circumstances.

4. Court’s Reasoning

The court began by identifying the statutory test for leave to appeal in section 17(1) of the Superior Courts Act 10 of 2013. It emphasised that leave may be granted only where the presiding judge is of the opinion that there is a reasonable prospect of success on appeal, or some other compelling reason for the appeal to be heard.

In addressing the grounds advanced, the court treated the contention that there were multiple orders (or uncertainty about the operative order) as a factual matter. It held that, notwithstanding the applicants’ earlier reliance on a document obtained in October 2016, that document did not constitute a court order, and the existence of confusion about the correct order did not alter the fact that only one order was made. The court indicated that this confusion provided the background to the condonation application, but did not furnish a basis to conclude that the condonation ruling was appealably wrong.

The court also placed weight on the practical significance of the condonation ruling. It reasoned that the grant or refusal of condonation would not affect the ultimate determination of the main action, which concerned the termination of joint ownership of immovable property. On the court’s analysis, refusal of condonation would not have advanced the merits but would instead have caused wasted costs and procedural duplication, because the proceedings would have had to start again.

In evaluating whether leave should be granted, the court stated that it had considered the grounds of the application, the reasons for the earlier condonation judgment of 18 March 2019, and the arguments advanced, and concluded that there was no reasonable prospect that another court would reach a different conclusion.

On the question of costs, the court referred to the warning expressed by a Full Bench in Harding & Others v Maclear (A272/2016) [2016] ZAWCHC 172 (24 November 2016) regarding dilatory tactics and “smart” points that do not advance litigation. The court considered the leave to appeal application to fall within the category of conduct criticised in that authority. On that basis, it considered it appropriate to order costs on an attorney-and-client scale and, additionally, to make the costs order de bonis propriis against the first respondent’s attorney.

5. Outcome and Relief

The court dismissed the application for leave to appeal.

The court ordered that the first respondent’s attorney pay the applicants’ costs of the leave to appeal application on the attorney-and-client scale, de bonis propriis.

Cases Cited

Harding & Others v Maclear (A272/2016) [2016] ZAWCHC 172 (24 November 2016)

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013 was not met because there was no reasonable prospect that another court would come to a different conclusion on the granting of condonation. It further held that the leave to appeal application constituted the kind of litigation conduct criticised as dilatory and unhelpful, justifying a punitive costs response, including a de bonis propriis costs order against the first respondent’s attorney.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal may be granted only where the requirements of section 17(1) of the Superior Courts Act 10 of 2013 are satisfied, in particular where there is a reasonable prospect of success on appeal or a compelling reason for the appeal to be heard.

It applied the principle that disputes about what order was made and whether a particular document is a court order may present a factual question, and that confusion about documentation does not, without more, establish a basis for appellate interference where the operative order is clear.

The judgment reinforced the approach that interlocutory procedural disputes (such as condonation for late filing) should be evaluated with regard to their effect on the litigation as a whole, and that procedural challenges which do not advance the substantive resolution of the dispute may be treated as wasteful.

It applied the principle, with reference to Harding & Others v Maclear (A272/2016) [2016] ZAWCHC 172 (24 November 2016), that courts may express disapproval of dilatory tactics and “smart” technical points that frustrate finality rather than advancing the litigation, and that in appropriate cases a court may order costs on an attorney-and-client scale and may, where justified, order costs de bonis propriis against a legal practitioner.