About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 51
|
|
Botha and Another v Algerdon Brokers CC (71244/2014) [2016] ZAGPPHC 51 (5 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NUMBER: 71244/2014
5/2/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
G
W P
BOTHA FIRST
APPLICANT
A
H
VENTER
SECOND
APPLICANT
and
ALGERDON
BROKERS
CC RESPONDENT
JUDGMENT
- LEAVE TO APPEAL
TLHAPI
J
[1]
The applicants seek leave to appeal the judgment of the 27 October
2015 where I refused an application to rescind an order granted
by
Tuchten J in the opposed motion court on 23 February 2015.
[2]
The judgment was criticised on the following grounds:
1.
That the order should have been rescinded because
the proceedings before Tuchten J were incomplete in that, the order
was granted
in the absence of the applicants.
2.
That the proceedings were incomplete, despite the
fact that the parties had filed all three sets of affidavits, the
respondent having
filed its heads of argument and the applicants
having failed to file heads of argument, and in the circumstances
Tuchten J having
proceeded to hear only counsel for the respondent
who was the only counsel present at the hearing;
3.
That the order was susceptible to being revisited
and rescinded and, that the order did not bring the matter to
finality and was
thus not appealable;
4.
In
not finding 'that paragraphs 1.1 and 2.1 of the order that was
granted by Tuchten J were erroneously sought and granted despite
the
fact that they were at variance with the provisions of the agreements
relied upon and in more particular clause 17.5.3 thereof
in that the
words "after termination of the agreement do not appear in any
of the agreements;·
5.
In
not finding 'that paragraphs 2.1 and 2.2 of the order that was
granted by Tuchten J was erroneously sought and granted because
they
were granted at variance with the provisions of the agreements relied
upon and more particular Clause 18.1.1 and 18.1.2 thereof
in that the
wording of these paragraphs contained in the order do not
correspondent with the said clauses.’
[3]
Counsel for the applicants was engaged at length on the purpose of
the founding, opposing and replying affidavits. He submitted
that
despite the fact that applicants had filed opposing papers. where
there was no argument presented on their behalf, the proceedings
were
incomplete. He relied on paragraph 27 in
Pitelli v Everton Gardens
Projects
CC
(2010) (5) SA 171
(SCA). The facts in this case are
distinguishable because Mr Pitelli as the court found for obvious
reasons, was evading the proceedings
and he had not filed any
opposing papers relating to the judgment he sought to rescind. I am
therefore still of the view expressed
in paragraph 8 and 9 of my
judgement, however I am persuaded especially after having regard to
the record of the proceedings before
Tuchten J, that another court
might find that the order granted by him was susceptible to
rescission in that it was obtained by
default.
[4]
I shall not deal with grounds 4 and 5 in paragraph 2 above because
these did not form the basis for the rescission application
and as
noted in the application, the applicants had not availed copies of
the main application before Tuchten J for scrutiny during
the
application for rescission.
[5]
In the result the following order is given.
'Leave to appeal to the
full court of this division is granted.
_______________
TLHAPI
W
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON: 04 DECEMBER 2015
JUDGMENT
RESERVED ON:
04 DECEMBER 2015
ATTORNEYS
FOR THE APPLICANTS:
KRUGER & OKES ATT
C/O
VAN
ZVL LE ROUC INC
ATTORNEYS
FOR THE RESPONDENT:
DE BEER JANSE VAN
VUUREN INCORPORATED