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[2015] ZAFSHC 164
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Batho Seventh-Day Adventist Church and Another v Setsiba and Others (4696/2014) [2015] ZAFSHC 164 (3 September 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : 4696/2014
In the matter between:-
BATHO
SEVENTH-DAY ADVENTIST CHURCH
1
st
Applicant
SIYABONGA
MAGADLELA
2
nd
Applicant
and
ABRAM
MPAPI
SETSIBA
1
st
Respondent
DAVID
MOKHELE
2
nd
Respondent
SIDNEY
MOSEMEGE
3
rd
Respondent
DINEO
MOSEMEGE
4
th
Respondent
OUPA
MOFOKENG
5
th
Respondent
SYLVIA
KHOBOKO
6
th
Respondent
COCONG
KHOBOKO
7
th
Respondent
PINKI
LEETO
8
th
Respondent
LERATO
LEETO
9
th
Respondent
GRACE
MOSIA
10
th
Respondent
LERATO
KOBILE
11
th
Respondent
KETSITSENG
KOBILE
12
th
Respondent
ROSE
MOROKA
13
th
Respondent
SAMUEL
TAGOE
14
th
Respondent
MATSHIDISO
MOKHELE
15
th
Respondent
MPHO
MARUMO
16
th
Respondent
PALESA
MARUMO
17
th
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON:
3
SEPTEMBER 2015
[1]
This is an application for leave to appeal against my judgment of 30
April 2015. Both counsel filed written submissions
as is the
practice in this division where the parties agree to do so. In
my judgment I dismissed the applicants’ interlocutory
application in terms of Rule 30 dated 1 April 2015 asking that the
answering affidavit and its annexures be stuck out with costs.
[2]
The main reason why I dismissed the Rule 30 application was the
absence of prejudice, as appears from my judgment of 30 April
2015.
[3] In the notice of
appeal the applicants say in paragraph 2 that I erred in finding that
the respondents had made a condonation
application subsequent to the
court order of CJ Musi AJP of 5 February 2015. In the court
file there is a notice of motion
dated 18 February 2015, served on
applicant’s attorneys on 18 February 2015 asking condonation
for the late condonation application
and the late filing of the
answering affidavit, to be heard on 19 February 2015. On 20
February 2015 the answering affidavit
was filed. There is no
indication that it has been accepted by the court.
[4]
The applicants responded to the condonation application of 18
February 2015 on 25 February 2015 by serving a notice under Rule
30(2)(b) to remove the answering affidavit filed on 19 February
2015. When the respondents did not react to the Rule 30(2)(b)
notice the applicants brought the present Rule 30 application to
strike out the answering affidavit.
[5] In
the notice of appeal the applicants say they are prejudiced by the
admission of the answering affidavit. The applicants
are wrong
to say that the answering affidavit has been admitted. That can
only be done once condonation has been granted.
It is not
unusual that affidavits in respect whereof condonation for the late
filing is sought, are filed before argument is heard.
The
document is admitted only after the court has granted condonation.
The fact that the affidavit is filed has no consequence
until it has
been accepted by the court. The filing has the effect that the
Registrar’s date stamp is on it. Usually
an affidavit in
respect whereof condonation is required is not filed before
condonation is granted. The fact that it has
been filed with
the registrar does not mean that it is before the court until
condonation has been granted. If it were otherwise
the
condonation application would be pointless. I am not convinced
that the filing with the registrar of an affidavit while
a
condonation application in respect of the late filing thereof is
pending, is a further step in the proceedings for purposes of
Rule
30. Even if it is a further step (and I think it is not) I fail
to see any prejudice, which is also not alleged in the
founding
affidavit supporting the Rule 30 application.
[6] Mr
Ayayee, for the respondents, in his heads of argument points out that
my judgment was on interlocutory matters and no final
pronouncement
was made on the rights of the parties.
[7] In
my view there are no reasonable prospects that another court will
come to a different conclusion.
ORDER
The
application for leave to appeal is dismissed with costs.
_____________
A.
KRUGER, J
On behalf of
Applicants: Adv N
Snellenburg
Instructed
by:
Rossouws
BLOEMFONTEIN
On behalf of
Respondents: Adv A E Ayayee
Instructed
by:
Matee Attorneys
BLOEMFONTEIN
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