About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 77
|
|
MEC Public Roads and Transport: Free State Province and Another v Van Der Merwe (4617/2010) [2015] ZAFSHC 77 (20 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 4617/2010
In the matter
between:-
MEC
PUBLIC ROADS AND TRANSPORT:
…......................................................................
1
st
Applicant
FREE STATE
PROVINCE
PREMIER
OF THE FREE STATE
…......................................................................................
2
nd
Applicant
and
JJ
VAN PER MERWE
….............................................................................................................
Respondent
JUDGMENT
BY:
MOENG,
AJ
DELIVERED
ON:
20
March 2015
[1] This is an
application for leave to appeal to the full bench of this division
against the whole of my judgment delivered on
29 January 2015. The
grounds of appeal are contained in the notice of appeal and I do not
deem it necessary to repeat same. I ordered
that heads of argument be
filed and that the parties appear before me if they so pleased. I
further warned the parties that I will
proceed with the application
irrespective of their appearance. I was only favoured with
respondent’s heads and applicant
failed to provide me with
same. Applicant likewise failed to appear before me.
[2] On the strength
of the foregoing grounds of appeal, applicants submit that in the
circumstances there is a reasonable prospect
of success and that
another Court, constituted differently, may come to a different
conclusion. The application is opposed. The
respondent contends that
none of the grounds of appeal have any substance and that there is no
reasonable likelihood that another
Court will differ from me on the
conclusions I reached on the issues raised.
[3] It is trite that
leave to appeal should not be granted unless the applicant satisfied
the trial court concerned that he has
a reasonable prospect of
success on appeal. The issues at hand relate to whether there was
merit in the application in terms of
section 3(4) of the Institution
of Legal Proceedings against Certain Organs of State Act 40 of 2002
(“the Act”) and
whether respondent unduly delayed
instituting the condonation application.
[4]
I concluded in my judgment that it is implausible, based on the
course of events, that applicant could have consulted and instructed
an attorney to institute an action before expiry of the notice
period. I was satisfied that all three requirements encapsulated
in
section
3(4)(b)(\),
(ii)
and (iii) were established. I was also satisfied that the attorney’s
admitted neglect to timeously proceed with the condonation
application should not in the circumstances, debar the applicant from
relief.
[5] After having
revisited my judgment and having re-evaluated same with the notice of
appeal as well as the heads of argument proffered
herein, I came to
the conclusion that applicant has no reasonable prospect of success
on appeal. In his heads of argument, Mr.
Mullins SC moved for an
order dismissing the application and that costs include those of two
Counsel. I do not believe that the
respondent’s choice to
employ two Counsel was warranted under these circumstances and I will
accordingly make the following
order:
1. Leave to appeal
is dismissed with costs.
L.B.J. MOENG, AJ
On behalf of
applicants: Mr. SS Jonase
Instructed by:
State Attorneys
BLOEMFONTEIN
On behalf
respondent: Adv. JF Mullins SC and J Zietsman
Instructed by:
Honey Attorneys
BLOEMFONTEIN