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[2016] ZAGPPHC 136
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Lipidsana DLO Products (Pty) Ltd v Kamffer (A620/2015) [2016] ZAGPPHC 136 (8 March 2016)
OFFICE
OF THE CHIEF JUSTICE
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION:
PRETORIA
DATE:
8/3/2016
CASE NO: A620/2015
Not reportable
Not of interest to other
judges
Revised
In
the matter between:
LIPIDSANA DLO PRODUCTS
(PTY)
LTD APPLICANT
And
MONALI
KAMFFER RESPONDENT
JUDGMENT
VUKEYA AJ
Introduction
[1]
This is an application for condonation wherein the applicant requests
the court to grant condonation for the late prosecution
of an appeal
and to reinstate the appeal;
[2] The applicant has
requested the court to allow him to apply for a court date for the
hearing of the appeal and to submit the
necessary record to the
Registrar within thirty (30) days of the granting of the order in
order for him to take steps to
attend to the rectification or
reconstruction of the record;
Background
[3] In his application
the applicant alleges that it was not in willful default as the
following factors contributed to the delay:
1.
After the judgment of the Regional Court
Pretoria, on 30 January 2015 which went in the favour of the
respondent, the applicant
noted an appeal on 19 February 2015.
2.
On 24 February 2015 a transcribed record of
the proceedings as well as a quotation for such transcription was
requested from iAfrica.
3.
On the same day the compact disc (CD)
containing the record of proceedings was requested from the clerk of
the court to have it
sent for transcription;
4.
Numerous letters were sent to the Regional
court and to iAfrica between 26 February 2015 and August 2015
regarding the transfer
of the CD and the ultimate transcription of
the record, without success.
5.
On 11 August 2015 the record was finally
transcribed and sent to the applicant.
6.
On 25 August 2015 the applicant came to
learn that the transcript was incomplete as it showed that the whole
of the evidence in
chief of the respondent’s witness was
missing.
7.
iAfrica was informed of the defect and they
confirmed their certificate to the effect that there were no
recordings on 30 July.
8.
The evidence of that witness is missing in
the transcript and reconstruction of the record is thus required.
[4]
The respondent opposed the application for condonation for various
reasons. First he contends that the applicant has not shown
good
cause for the application and that the application is not bona fide,
as it has failed to deliver its notice of appeal and
to give security
for the Respondent’s costs. He further states that the
applicant does not give a satisfactory account for
the delay. He
contends further that the explanation provided is vague and does not
explain with sufficient particularity why the
applicant is in
default.
[5]
According to the respondent the applicant is deliberately delaying
the process in order to evade the execution of the court’s
order, and that its appeal does not have good prospects of success as
its defence is bad in law.
[6] The respondent has
referred the court to the following case law amongst others:
1.
P E Bosman transport works committee and others v Piet Bosman
Transport (Pty)
Ltd
1980 (4) SA 794
(A)
2.
Commissioner for Inland Revenue v Burger
1956
(4) SA 446
(A)
3.
Ferreira v Ntshingila
1990 (4) SA 271
(A)
[6]
In a nutshell the principle that can be extracted from all this cases
is that the court should be reluctant to grant condonation
where
there has been a flagrant breach of its rules in more than one
respect and where there is no explanation for some of the
delays.
Furthermore, that where there has been non-compliance, an application
for condonation is required to be made as soon as
the party concerned
realizes that the rules have not been complied with.
[7] Regarding Security
for Costs the applicant explained that the Magistrate’s court,
Pretoria was approached in order to
make the payment but the Court
through the Court Manager refused to take the money saying the
process is outdated. An amount of
R150 000, 00 was therefore put
into a trust account and this amount covers the judgment of the court
a quo.
Applicable Law
[8] Rule 27 (3) of the
Uniform Rules of Court provides that:
A
court may, on good cause shown, condone any non-compliance with the
rules.
[9]
The Rule requires that good cause be shown before condonation can be
granted but the court cannot ignore the lateness of the
application;
the reasons for the lateness; any prejudice to the other party; and
the prospects of success the applicant has on
prosecuting the appeal.
[10] The exercise of
discretion by the court is involved when deciding whether to grant or
to refuse condonation and the above requirements
for determining
whether condonation should be granted were set out in
Melane v
Santam Insurance Co Ltd
1962 (4) SA531 (A) where the court
indicated how the discretion should be exercised.
The degree of lateness
[11] Judgment was granted
in favor of the respondent on 30 January 2015 and the
dies
required in terms of the rules expired 60 days thereafter. A
period of at least four (4) months expired before the applicant could
apply for condonation. The applicant explains that it would not have
taken his application anywhere if it had brought it without
a
transcribed record of the proceeding and it had to wait until it was
available. This explanation is reasonable as it is evident
from the
documents filed that immediately after receiving the transcripts; the
applicant brought its application for condonation
together with its
notice of appeal.
Reasons for the
lateness
[12] The applicant has
sufficiently displayed its frustrations with trying to obtain the
transcribed record in order to prosecute
the appeal. To date it has
been unable to obtain a complete record from the Magistrate’s
court or from iAfrica. These reasons
are satisfactory as they are
also supported by documentary proof of the applicant’s
endeavors to obtain a complete record
form February 2015 to date.
Any prejudice to the
other party
[13]
It is in fact so that the respondent obtained judgment for R150 000,
00 plus costs in January 2015 against the applicant.
It can also be
accepted that he would have by now executed the judgment, had it not
been for the delayed prosecution of the appeal.
The interests of the
respondent are not to be considered in isolation but they are to be
weighed against the rights of the applicant
especially where there is
provided, a satisfactory explanation regarding the delay.
[14]
This is in line with Section 34 of Act 108 of 1996 which gives
everyone the right to ha
ve
any dispute that can be resolved by
application of law decided in a fair public hearing before a court or
where appropriate, in
another independent and impartial tribunal or
forum.
[15] The applicant has
taken steps to deposit the judgment amount in the Trust account. The
potential prejudice of the respondent
not obtaining a refund through
execution of the judgment is removed.
Prospects of success
of the applicant in the appeal
[16]
The dispute between the parties arises from a contract executed on
18/05/2011 wherein the respondent bought in to a product
scheme
operated by the applicant, where the respondent became the principal
agent for a buying value of R150 000, 00. In terms
of the said
contract, in the event the applicant does not deliver or meet its
obligations in terms of delivery of the product by
a certain
specified date; and if no such delivery has been made, then the
respondent would be entitled to a refund within 48 hours.
The
respondent alleges that the applicant failed to meet his obligations
and therefore he is entitled to a refund.
[17]
The applicant alleged that though the contract had lapsed, there was
an extension by agreement between the parties alternatively
that the
parties entered into a verbal agreement with each other whereby the
respondent accepted such an agreement and the applicant
actually
performed in terms of the verbal agreement.
[18]
This defence has already been tried and tested and was found to have
no merit by the court a quo, hence the judgment in favor
of the
respondent. The test herein is whether there are reasonable prospects
of success if the appeal is prosecuted.
[19] I therefore find
that there are reasonable prospects that the appeal might be
successfully prosecuted.
Finding
[20]
The applicant did not deliberately delay the filing of the appeal as
is evident from the documents filed in support of the
application; it
has given a satisfactory account of the delay and its attempts to
accelerate the process; it made attempts to pay
into the Magistrate’s
Court Account security for costs for the appeal and did not succeed;
it then paid the judgment amount
into a trust account in order to
comply with the rules regarding payment of security.
[21] I am of the view
that the applicant has shown good cause why his application for
condonation should be granted; his application
is bona fide and it
has not been brought for purposes of delay.
Order
[22] I therefore
propose that the following order is made:
22.1. The application
for condonation is granted;
22.2. Reconstruction
of the record is ordered;
22.3. The Presiding
Officer, iAfrica and all interested parties are hereby directed to
assist in the reconstruction of the record
within ninety (90) days
from the date of this order and within a further sixty (60) days
thereafter the appeal must be placed on
the roll of this division
with the record fully paginated and heads of argument filed;
22.4.
Costs are reserved.
_________________________________
VUKEYA
L D
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA GAUTENG DIVISION PRETORIA
I agree
_________________________________
MOTHLE
S P
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA GAUTENG DIVISION PRETORIA
HEARD ON: 04 FEBRUARY
2016
DELIVERED ON:
COUNSEL FOR
APPELLANT: ADV A J SWANEPOEL
ATTORNEYS FOR
APPELLANT: VOGEL INC.
COUNSEL FOR
RESPONDENT: ADV K FITZROY
ATTORNEYS FOR
RESPONDENT: MUTHRAY AND ASSOCIATES INC.