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[2013] ZAFSHC 71
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Nophale v ABSA Bank Ltd and Others (489/2012) [2013] ZAFSHC 71 (16 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.:489/2012
In the matter between:
NONHLUPHEKO SINA
NOPHALE
...............................................
Applicant
and
ABSA BANK LIMITED
........................................................
1
st
Respondent
KELETSO PETRUS
KHUTLANE
.......................................
2
nd
Respondent
MASEBOLAI LYDIA
KHUTLANE
.......................................
3
rd
Respondent
SHERIFF,
BLOEMFONTEIN EAST
....................................
4
th
Respondent
REGISTRAR OF DEEDS
.....................................................
5
th
Respondent
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
HEARD ON:
IN CHAMBERS
_______________________________________________________
DELIVERED ON:
16 May 2013
_______________________________________________________
[1] The applicant applied
unsuccessfully for,
inter alia
, rescission of default judgment
entered against her by the Registrar of this court in terms of rule
31(5)(b) of Uniform Rules of
Court (“the Rules”) with the
application being dismissed with costs on the 21 June 2012 by
Snellenburg, AJ. She feels
aggrieved by the Judgment and now seeks
leave to approach the full bench of this court on appeal against the
same.
[2] The application for
leave to appeal was filed with the Registrar on the 28 September 2012
and is, as such, late in so far as
it should have been lodged on or
before the 12 July 2012 in accordance with the provisions of Rule 49
of the Rules which limit
the period for applying for leave to appeal
to 15 days from the date of judgment. The applicant, therefore,
applies,
ante omnia,
for condonation of the late application
on the grounds that the delay is attributable to inability on her
part to secure an earlier
appointment with her erstwhile attorney
who, in any event, notified her of the judgment in July 2012. The
application for leave
to appeal is, thus, not properly before the
court until and unless condonation is granted. (See generally
Aymac
CC v Widgerow
2009 (6) SA 433
(Witwatersrand) at 441A.)
[3] On the 20
March
2013 I caused a letter to be directed to the parties inviting them to
file brief heads of arguments dealing with prospects
of success of
the proposed appeal on or before specified dates. The letter,
further, invited the parties to notify me in writing
within 5 days of
the letter if any of them had a problem with the procedure in
question which is desirable in the light of the
decision in
Law
Society of the Northern Provinces v Mogami and Others
2010
(1) SA 186
(SCA) at para [3]. No objection was received and the
applicant had until the 10
April 2013 to file her heads.
No submissions were, however, received from the applicant in this
regard.
[4] An applicant for
condonation is required to show good cause and the court may exercise
its discretion in favour of granting
the same where principles of
justice and fair play demand it and where the reasons for
non-compliance with the time limits have
been explained to the
satisfaction of the court. Good cause depends on the circumstances of
each case and is impossible to define.
The degree of lateness, the
reason for the delay, prospects of success in the application,
importance of the matter to the applicant
and prejudice to the
respondent who desires and is entitled, in the ordinary course, to
enjoy the benefits of judgment in his favour
are some of the factors
that the court takes together into consideration in the application
of the present nature without over-emphasising
any of the factors.
(See
Shawzin v Laufer
1968 (4) SA 657
(A) at 663B and
Melane v Santam Insurance Company Ltd
1962 (4) SA 531
(A).)
[5] The delay involved is
excessive and the applicant attributes the same to his erstwhile
attorney who was not available for consultation
until August 2012 and
her present attorney who needed to go through the file to qualify
himself to handle the matter further. The
date on which the applicant
acquired knowledge of the judgment she seeks to assail on appeal is
the determining factor in this
application. The exact date is,
however, not apparent
ex facie
the supporting affidavit.
Although the applicant’s case is that she was notified of the
same per letter in July 2012, such
a letter is not annexed to the
affidavit and no explanation is proffered for the omission. In the
light of the fact that the 15
day period prescribed for applying for
leave to appeal expired on the 12 July 2012, it was necessary for the
date of such a letter
to be disclosed for the court to determine
whether or not, at the time of notification, the prescribed period
had not already expired
so as to limit the enquiry, with regard to
good cause, to the period after acquisition of knowledge of the
judgment by the applicant.
No confirmatory affidavit by the
applicant’s erstwhile attorney is before the court although he
remains applicant’s
correspondent attorney in this matter.
[6] The tardiness of a
party’s legal representative does not generally constitute good
cause for condonation and may, in appropriate
circumstances, saddle
the relevant party with the consequences of the attorney’s lack
of diligence or the insufficiency of
the explanation tendered where
there has been a flagrant disregard for the rules without any
acceptable explanation for the same
being furnished. The date on
which the applicant’s present attorney received the file
contents from her erstwhile attorney
is also not apparent from the
papers before the court. Neither is the reason for failure to lodge
the application at any time after
the 21 September 2012, when she
consulted with her current attorney, and before the 28 September 2012
disclosed. No adequate and
acceptable explanation has been furnished
for the excessive delay involved. (See
Soloojee and Another NNO
v Minister of Community Development
1965 (2) SA 135
(A) at
141C and
Blumenthal and Another v Thompson NO and Another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121I – 122B.)
[7] In her contention
that her matter enjoys reasonable prospects of success on appeal, the
applicant refers to the application
for leave to appeal and concludes
that the matter relates to her constitutional right to adequate
housing and that it is of paramount
importance to her and other
people similarly situated. The first, second and third respondents,
on their part, oppose the application
and effectively support the
dismissal order on
inter alia
the basis that the applicant
enjoys no reasonable prospects of success on appeal. A perusal of the
notice of application for leave
to appeal the relevant judgment shows
that the applicant does not raise any new matters other than the
issues specifically addressed
by Snellenburg AJ in his elaborate
judgment. I am satisfied that the judgment in question not only deals
with the relevant issues
raised but also adequately and painstakingly
addresses the constitutional rights implicated in the matter. The
fact that the applicant’s
constitutional right is affected does
not
per se
mean that the matter enjoys good prospects of
success on appeal. As Snellenburg, AJ correctly pointed out in the
judgment, the
applicant had to show,
inter alia
, that a court,
with full knowledge of all relevant facts existing at the time of
granting default judgment, would have refused
leave to execute
against the applicant’s specially hypothecated property. The
test in an application for leave to appeal
is whether or not the
matter enjoys reasonable prospects of success on appeal and not
whether or not the matter is arguable. (See
Gundwana v Steko
Development and Others
2011(3) SA 608 (CC) and
Smith v
S
2012 (1) SACR 567
(SCA) at 570b-c.)
[8] I am not persuaded
that the matter enjoys any reasonable prospects of success. It is,
thus, not necessary, for the purposes
of condonation, to deal with
other factors raised by the present matter. To grant condonation
in
casu
, when no prospects exist, would be an exercise in futility.
(See
Rashavha v Van Rensburg
2004 (2) SA 421
(SCA).)
ORDER
[9] The application for
condonation is dismissed with costs inclusive of costs of application
for leave to appeal.
______________
L. J. LEKALE, J
On behalf of applicant:
Majola Attorneys
BLOEMFONTEIN
On behalf of first
respondent: Adv. C. D. Pienaar
Instructed by:
Phatshoane Henney
BLOEMFONTEIN
On behalf of second and
third respondent: Adv. S.
J. Reinders
Instructed by:
Webber Attorneys
BLOEMFONTEIN
/eb