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[2013] ZAECELLC 5
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Ufudo Estate Agents CC t/a Remax Sunshine Coast v Rakel (Pty) Ltd (EL 737/08, ECD 3037/08) [2013] ZAECELLC 5 (24 July 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION –
EAST LONDON
CASE
NO: EL 737/08
ECD
3037/08
Delivered: 24 July
2013
In
the matter between:
UFUDO
ESTATE AGENTS CC
t/a
REMAX SUNSHINE COAST
.........................................................
Plaintiff/Respondent
and
RAKEL
(PTY) LTD
..............................................................................
Defendant/Applicant
____________________________________________________________________
LEAVE TO APPEAL
____________________________________________________________________
MAGEZA
AJ
[1]
On the relatively few occasions during which I have had to hear
argument in respect of applications for leave to appeal, I must
say I
have not been particularly occasioned much ambivalence in granting
such leave and have done so immediately pursuant to argument
having
been heard. This matter stands on quite a different footing in that,
not only is the law clear on the issues under discussion
but more
importantly, the pertinent factual history convincingly lends itself
to the cautions pointed out in our case law and authorities
concerning both the requirement for the sufficiency of the ‘reason(s)
explaining the withdrawal sought’ and the imperative
to avoid
an injustice and ‘prejudice occasioned the other party’
consequent upon such withdrawal.
[2]
Having heard Mr Schultz for applicant and Mr Brooks for the
respondent on this application for leave to appeal, I remain
unconvinced
that applicant sufficiently explained itself in its
papers and am persuaded by respondent that it will suffer prejudice
not capable
of mitigation through either an award of costs or similar
relief. I say so taking full cognizance of the argument made by Mr
Schultz
on behalf of applicant that this decision has the consequence
of possibly closing the door on applicant (as defendant) in the
relevant
material respects, something that I appreciate, on tortured
consideration, must yield to the rights that respondent (as
plaintiff)
must be allowed.
[3]
Having heard the application on 19 October 2011 and handed down
judgment on 8 November 2011, the application for leave itself
was
before me on 18 June 2013. In my principal judgment after having
considered the matter, I came to the conclusion reached having
also
accepted,
inter alia
, that:
“
Plaintiff points out that if
Defendant were to be allowed to amend its plea, this would
necessitate the joinder of a third party
to the proceedings and this
would needless to say cause it severe financial prejudice and
obstruct the Plaintiff’s right
to have its case timeously
disposed of. It furthermore asserts that the Defendant’s
application is a delaying tactic and
an attempt to prevent it from
obtaining justice. Plaintiff also points that any claim against Lutge
has now prescribed.”
[4]
In order to succeed in the application for leave to appeal, applicant
must show that there is a reasonable prospect of success
on appeal.
–see
Pharmaceutical Society of South Africa v Tshabalala -
Msimang
2005 (3) SA 238
(SCA)
at para 40. I am also alive to the
precaution that where a Court decides to refuse leave to appeal, it
is not necessary for it
to give reasons why it does so as the reasons
for its findings will have already been set out in its judgment.
Indeed the authorities
say such a course ought to be discouraged. –
see Mphahlele v First National Bank of SA Ltd
[1999] ZACC 1
;
1999 (2) SA 667
(KH)
(199 (3) BCLR 253)
and (Beyers v Elf Regters van die Grondwetlike Hof
[2002] ZACC 19
;
2002 (6) SA 630
at 635
paras [4] and [5].
[5]
Suffice to repeat only this that the basis on which the applicant
brought the application for the withdrawal of the admissions
made in
its plea and the reasons for the refusal of that application by this
Court are in my view sufficiently set out in the judgment.
The law
pertinent thereto is stated, discussed and applied.
[6]
Applicant also seeks leave to appeal the order of costs granted on an
attorney and client scale. Mr Schultz argued that the
order was made
without the parties being invited to argue the issue of costs on this
scale. In paragraphs (6) to (10) of my judgment
I deal with what I
characterize as the applicant’s failure to give a logical,
coherent and candid explanation as to what
the meetings were
precisely concerned with and what decisions were arrived at
thereanent. Applicant wholesomely failed to address
itself to the
specifics of the discussions around the matters it was required to
sufficiently explain, that is, how the contentious
issues in the
meetings referred to were resolved. The applicant avoided pinning
itself to even moderate detail and resorted instead
when unable to do
so by attempting to detach itself from those discussions. I remain
needless to say left with a negative impression
in respect of the
basis on which the application was brought; the passage of time
between the making of the admission and the application;
the timing
thereof coming as it did after a pre-trial where the issue was not
raised and the trial itself, as all suggestive of
an effort to,
inter
alia
, buy time. That is to say nothing of the applicant’s
knowledge of the setting in of prescription against Lutge as stated
by Respondent. All these are tantamount to an abuse of the processes
of this Court and the Court has a judicial discretion in such
circumstances to express its rebuke and if necessary, to make such an
order. – see Commissioner for
SARS v Hawker Air Services
(Pty) Ltd:
2005 (5) SA 283
(T); Lourenco v Ferela (Pty) Ltd (No1)
1998 (3) SA 281
(T); Rhino Hotel and Resort (Pty) Ltd v Forbes
2000
(1) SA 1180
(W).
[7]
The application for leave to appeal is therefore refused.
___________
MAGEZA
AJ
18
JULY 2013
3