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[2017] ZAGPPHC 6
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Satara Ontwikkelaars (Edms) Bpk v Krynauw (18545/2012) [2017] ZAGPPHC 6 (16 January 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
16/1/2017
Case No. 18545/2012
In
the matter between:
SATARA
ONTWIKKELAARS (EDMS)
BPK
APPLICANT
and
PIERRE
KRYNAUW
RESPONDENT
Heard
on: 19 December 2016
Judgment
on: 16.January 2017
JUDGMENT
CANCA
AJ
[1]
This is an application for leave to appeal the whole of my judgment
and order handed down by Justice Khumalo on 29 June 2016.
The
applicant also seeks condonation for the late filing of the
application for leave to appeal. The reasons for the late filing
are
dealt with hereunder.
The
respondent opposes both the application for condonation and the one
for leave to appeal.
[2]
It is convenient to first consider the condonation application.
Condonation
Application.
[3]
On or about 31 October 2016, a Judge's Registrar of this Court
forwarded me the aforementioned application for leave to appeal.
As
same was not accompanied by an application seeking condonation for
the late filing of same, I requested the Registrar to enquire
from
the applicant's attorneys of record, if they intended to apply for
condonation.
The
condonation application was then filed on or about 21 November 2016
and the matter set down for hearing on 19 December 2016.
[4]
According to the applicant's attorney, the reason for the late
filing, in summary, is the following: Senior Counsel, who had
been on
brief for the trial, came across the judgment on the SAFLll website
per chance sometime in September 2016. The applicant's
attorney
further avers that:
"3.4. It appears
from the website that the judgment had been delivered on 29 June
2016, without any indication to the plaintiffs
attorneys of the
judgment being handed down on that date. It is not known whether the
defendanfs attorneys had any knowledge of
the judgment being handed
down - as they never communicated with my firm about the
judgment.....”
[5]
Upon receipt of the condonation application, I enquired from the
Registrar, who had assisted me whilst acting in this Court
during the
relevant period, as to whether or not she had informed the parties
when judgment would be handed down. She replied in
the affirmative
and pointed out that the respondent's representatives were in Court
to note the judgment. She would never have
just informed one party
and not the other, she stated further. I have no reason to question
the Registrar's version, particularly,
given that one of the parties
was represented when the judgment was handed down. The probabilities
are that someone in the applicant’s
attorney's office forgot to
note the date when judgment was to be handed down. It is also not
clear to me why the applicants attorney
did not enquire from the
Registrar as to when the judgment would be handed down given that the
trial ended on 21 April 2016. It
took over 5 months for the
applicant's attorney to know that judgment had been handed down and
even then, not through his own efforts
but rather, through his senior
counsel. I am, however, given that he has sworn on oath that he was
not aware of the date of judgment,
unable to question his
bona
fides.
[6]
It is generally known that the Chief Justice has directed that
judgments should not be outstanding for longer than 3 months.
The
impugned judgment was handed down well within that period and I would
have expected the applicants attorney to have started
making
enquiries closer to the three months cut-off date and certainly
thereafter. However, be that as it may, Mr Griessel for
the
respondent, did not object too strongly to the application for
condonation as he was confident that the application did not
have any
prospects of success on appeal. Condonation was duly granted.
The
application for leave to appeal.
[7]
The application is based on 7 grounds and these are that I erred in:
1.
dismissing the plaintiff's claim with costs;
2.
not finding that the plaintiff had proved its
damages;
3.
dismissing the plaintiff's claim for R1 129
970.78 (''the addendum claim");
4.
in
finding that the plaintiff did not prove the quantum of the addendum
claim;
5.
in
finding that the plaintiff had ceded and waived all or part of the
addendum claim to Excalibur;
6.
in
finding that there was no evidence of negligence on the part of the
Vermaark; and
7.
in
finding that the plaintiff failed to prove that sufficient evidence
existed which could reasonably have been obtained and adduced
by the
defendant had he performed his mandate and on which evidence the
plaintiff would have been successful with the addendum
claim.
[8]
Mr Rip, for the applicant, did not persist with the 6111 ground of
appeal and limited his attack to two main thrusts. These
are that:
(1) the plaintiff had proved its damages and (2) the evidentiary
burden on the plaintiff was lower in this particular
case. Reliance
for this contention was placed on
Dhooma v Metha
1957 (1)
SA 676
(D) 678 E-F.
It was also argued on behalf of the applicant
that the waiver or cession to Excalibur the respondent relied on had
to have been
in writing. There was no evidence that a valid cession
or waiver took place particularly as the sale agreement contained a
non
variation clause, so the argument continued.
[9]
Mr Grissel countered these submissions by arguing, firstly, that the
only evidence adduced to show what amounts were still due
was the
introduction of Annexure C which was compiled by Crouse on the
evidence of Vennaak, both of whom did not testify. The testimony
of
Dr Theron on this aspect of the matter was consequently inadmissible
hearsay evidence. Secondly, Mr Grissel persisted with the
contention
that the applicant had failed to prove that it suffered damages as a
result of a breach of the mandate by the respondent.
Finally,
Mr Grissel contended that the variation clause relied on by the
applicant was in respect of the sale agreement and not
the
construction agreement. There was no proof that construction
agreements were concluded or what their terms were, so the contention
continued.
[10]These
aspects of the matter are dealt with in detail in paragraphs 21 to 42
of my judgment and need not be repeated here.
[11]
Having considered the applicant's grounds for leave to appeal to a
Superior Court and the arguments in support thereof, I am
not
convinced that any of the grounds are such that another Court will
come to a conclusion which will differ from mine. This application
therefore stands to be dismissed. It lacks merit and contains no
basis which will convince a Court of appeal to overturn my judgment.
[12]
In the result, I order as follows:
The
application for leave to appeal is dismissed with costs.
__________________
CANCA
AJ