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[2018] ZAGPPHC 877
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Ngobese v Coetzee (1401-2017) [2018] ZAGPPHC 877 (16 March 2018)
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO
:
1401-2017
DATE
:
2018-03-16
In
the matter between
KENNETH
MUZONNJANI NGOBESE
APPLICANT
and
BRINK
PHILLUS COETZEE
RESPONDENT
JUDGMENT
[LEAVE TO APPEAL]
SARDIWALLA (J):
This is an application for leave to appeal, arising from an order
that had handed down in the Gauteng Local Division,
Johannesburg on
29
th
November 2017 in terms of which I ordered that the Application in
that matter was to stand as a Summons; the Applicant was to file
a
Declaration within 30 days; costs were reserved; and the matter was
referred to oral evidence.
Today I have before me an Application for Leave
to Appeal by the Respondent in that matter, who is now the Applicant,
and the Application
for Leave to Appeal consists essentially a Notice
for Leave to Appeal. It reads a Notice for Leave to Appeal, and there
is reference
to the issue of Section 18(3) and the Administration of
Estates Act, and submissions that my order dismissing the
point in
limine
raised by Respondent (Applicant in the main Application)
had
locus standi
in the application.
It is also submitted that the appeal has a
reasonable prospect of success that I erred on the facts and in the
law. That is as much
as the notice says. ·it is not supported
at all by an analysis of the order; submissions as to why the order
is appealable;
nor are there Heads of Argument by the Applicant; and
naturally no Heads of Argument by the Respondent where filled, save
for the
submissions made from the bar, which obviously the Respondent
has not had the opportunity to prepare and consider.
Indeed the court has been in the similar
predicament. When I enquired about the judgment or the order, it was
then produced from
the attorney's file, and handed to me and a copy
to the Respondent. It was not even attached to the application. Now
if one analyses
Rule 49(1)(b) and the rationale and reasoning in
respect of the grounds of appeal required in terms of Rule 49(1)(b),
it requires
that the grounds must be clearly and succinctly set out,
in clear and unambiguous terms, so as to enable the court and the
Respondent
to be fully and properly informed of the case which the
Applicant seeks to make out, and the Respondent is to meet in
opposing
an Application for Leave to Appeal.
Respondent in this matter indicated clearly
that he had inadequate information to respond to, and hence there is
no response nor
Heads of Argument on his part. Rule 49(3) makes it
pre-emptory in this regard. Rule 49(1)(b) must also be regarded as
being pre-emptory.
In my view the submissions and rambling Notice of
Appeal filed in this case wilfully falls short of what is required.
The point is that the Notice must clearly set
out the grounds, and it is not for the court to have to analyse any
document in an
attempt to establish what grounds the Applicant
intended to rely on and made from the bar, but did not clearly set
out in supporting
such an Application. On this basis alone the
Application to me seems to be fatally defective and must be
dismissed. I am also,
over and above these aspects, not convinced in
the least that there are any prospects of success on appeal, based on
these submission
from the bar and the Notice of Appeal.
Accordingly the Application for Leave to Appeal
is refused, the Applicant to pay the costs.
..........................................
SARDIWALLA J
JUDGE OF THE HIGH COURT
DATE:
25
May 2018