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[2009] ZAGPPHC 182
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Nkomazi Munisipaliteit v Kelders (A63/07) [2009] ZAGPPHC 182 (2 April 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH-GAUTENG
HIGH COURT) PRETORIA
Case
No.: A63/07
Date:
02/04/2009
In
the matter between
NKOMAZI
MUNISIPALITEIT
…......................................................................
Appellant
and
KELDERS
S J J
…..........................................................................................
Respondent
JUDGMENT
Judgment
reserved: 13/03/09
Coram;
Legodi J et Makgoka AJ
LEGODI, J
1.
Before us, it is an application for leave to appeal against the
judgment which was handed by this court on 12 December 2008.
2.
I do not find it necessary to deal with the grounds of appeal as
stated in the notice of application for leave to appeal.
3.
I find many of the grounds raised having been dealt with in the
judgment and I do not find it necessary to revisit or attempt
to
rewrite the judgment.
4.
It suffices to mention that the applicant sought to raise in this
application for leave to appeal other issues which did r form
part of
argument during the appeal.
5.
The first ground of appeal raised by the applicant is that, this
court erred in ordering that the appellant should pay interest.
It is
alleged that this court could not have made such an order as the
respondent who was the plaintiff in the court aquo did
not claim
interest in its particulars of claim. Clearly, this is wrong.
Interest at 15.5% was specifically claimed in the particulars
of
claim.
6.
The other ground raised as I understood it, is that this court erred
in ordering the appellant to pay interest from date of the
issue of
summons to date of payment. The submission in this regard was that,
at the time summons were issued, the capital amount
indicated as part
of the stated case was not due and payable and that therefore no
interest could be levied against such an amount.
7.
During argument in this application for leave to appeal, it became
clear that interest had to be reckoned from August 20006 and
not from
the date on which summon were issues Counsel for the respondent
indicated that it was not the intention of his client
to claim
interest from the date of summons, but rather from August 2006 on the
outstanding
8.
The issue was therefore, whether the period for which interest should
be charged was still the subject of an appeared bearing
in mind the
concession by counsel on behalf of the respondent. It would be
academic to want to take the issue on appeal. In main,
I do not think
that another court may find differently from the finding by this
court, especially bearing in mind that the capital
amount and
interest was agreed upon as pari of their stated case.
9.
Consequently, I would make an order as follows:
9.1.
The application for leave to appeal is refused.
9.2.
Each party to pay their own costs including the reserved costs
occasioned on 13 February 2009.
M
F LEGODI
JUDGE
OF THE-HIGH COURT
I,
agree
T M MAKGOKA
ACTING
JUDGE OF THE HIGH COURT
For
the Appellant
Mnre
H A MARAIS INC.
C/O
COUZYN HERTZOG & HORAK INC.
Middle
street 321
BROOKLYN
PRETORIA
For
the Respondent
STUPEL
& BERMAN INC.
C/O
HACK, STUPEL & ROSS
Standard
Bank building
PRETORIA