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[2009] ZAGPJHC 31
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Saders Attorneys v Moolman and Another In re: Sellar v Moolman and Another (01/25930) [2009] ZAGPJHC 31; [2009] 4 All SA 444 (GSJ) (31 July 2009)
IN THE
SOUTH
GAUTENG HIGH COURT
(
JOHANNESBURG)
CASE NO
01/25930
In the matter between
SADERS
ATTORNEYS APPLICANT
and
DOROTHEA
JOHANNA SUSANNA MOOLMAN FIRST
RESPONDENT
HELENA
CATHARINA MOOLMAN SECOND RESPONDENT
In
re
MICHAEL
HENRY SELLAR APPLICANT
and
DOROTHEA
JOHANNA SUSANNA MOOLMAN FIRST
RESPONDENT
HELENA
CATHARINA MOOLMAN SECOND RESPONDENT
J U D G M E N T
VAN OOSTEN J
[
1]
This is an application for the variation of a court order. The
applicant is Saders Attorneys who were the attorneys of record
on
behalf of Michael Henry Sellar, the applicant in an opposed
application bought by way of urgency in this Court, against the
present respondents, as respondents (the urgent application). The
urgent application was heard by Hussain J, who on 22 October
2003,
dismissed the application and ordered Saders Attorneys to pay the
respondents’ costs of the application
de
bonis propriis
on an attorney and client scale (the costs order).
[
2]
On 17 November 2003 Saders Attorneys delivered a notice of
application for leave to appeal against the costs order. The notice
was delivered three days late. The application for leave to appeal
was heard by Hussain J almost a year later on 18 October 2004.
In
argument before the learned judge counsel for the respondents
contended that the application for leave to appeal was out of
time
and that the respondents were not prepared to grant condonation. The
application for leave to appeal was dismissed with costs
on an
attorney and client scale for the reasons stated by the judge as
follows
The respondents
are not willing to condone this and bearing in mind the long history
of this matter I am loath to exercise my discretion
in favour of the
applicant and condone this in the absence of a substantive
application for condonation. It is not in dispute that
the Notice of
Appeal is five days
(sic) out of time, nor is it in dispute that there is no application
before me for condonation for the lateness of the filing.
What is
more is that it is not in dispute that the applicant’s
attorneys, or at least counsel was warned that this was the
case and
that the point will be taken notwithstanding that there was no
application for condonation that was filed. That being
the case my
hands are tied and for that reason the application must be dismissed.
[
3]
On 17 November 2004 Saders Attorneys launched the present application
in which the following relief is sought:
1. An order
varying His Lordship’s
(Hussain J’s) order of the 18
th
of October 2004 by deleting same and substituting the following
order:
“
The
application for leave to appeal is postponed, each party to pay their
own costs”.
2. An order
declaring that the Respondents condoned the Applicant’s late
filing of its notice of application for leave to
appeal against His
Lordship’s judgment and order of the 22
nd
of October 2003.
3. Alternatively
to 2, condoning Applicant’s late filing of its notice of
application for leave to appeal and ordering that
Applicant’s
notice dated 17
th
November 2003 stand as its notice of application for leave to appeal.
4. That leave be
granted to the Applicant to appeal to the Supreme Court of Appeal,
alternatively the Full Bench of the Transvaal
Provincial Division,
against the order of His Lordship delivered on the 22
nd
of October 2003 when His Lordship ordered the Applicant to pay
Respondents’ costs on the attorney and client scale de bonis
propriis on the basis as outlined in Applicant’s notice of
application for leave to appeal dated 17
th
of November 2003.
5. That the Respondents be ordered
to pay the costs of this application in the event of their opposing
same but in the event of
their not so doing that the costs hereof be
costs in the cause of the appeal.
[
4]
Although the respondents are opposing the application, no answering
affidavit has been filed. The matter therefore has to be
decided on
the founding papers alone.
[5] A convenient
starting point is to consider whether condonation for the late filing
of the notice of application for leave to
appeal had in fact been
granted by the respondents (prayer 2 of the notice of motion). In
principle the applicant’s entitlement
to a variation of the
order dismissing the application for leave to appeal on the basis of
a mistake common to the parties to the
effect that condonation had in
fact been granted, is uncontested. Counsel for the applicant readily
and in my view correctly conceded
that no case has been made out for
express condonation having been granted by the respondents. Counsel
however submitted that condonation
was granted by the respondents
either by implication or tacitly. In support hereof reliance in
essence was placed on two letters
in the chain of correspondence that
preceded the hearing of the application for leave to appeal. In the
first letter dated 19 November
2003 Saders Attorneys having referred
to the fact that the application for leave to appeal was filed late,
and furnishing the reasons
therefore, requested the respondents’
then attorney to “please inform us whether you will consent to
the late filing
of the application or whether you require us to bring
a formal application in this regard”. In his response hereto
respondents’
attorney “confirmed” that he would
“take instructions from our client with regards to the late
service and filing
of the application for leave to appeal and revert
back to you in due course”. Further correspondence between the
attorneys
followed but the aspect of condonation was not raised
again. Nor was it dealt with by the respondents’ attorneys
successors.
The applicant now contends that the absence of an
indication by the respondents’ attorney whether a formal
application for
condonation was required and the following
correspondence in which no reference was made to condonation, created
the “firm
impression” that no formal application for
condonation was required and that condonation therefore was granted.
[6] The applicant’s
reliance on implied or tacit condonation in my view is misplaced. It
is for the party seeking an indulgence
such as condonation to ensure
that it is properly obtained and recorded. Such party cannot merely
rely on the inaction of its opponent
to respond to a request for an
indulgence as constituting implied or tacit condonation. But on the
facts of the present matter
it goes further: any doubt that may exist
in this regard was removed when the aspect of condonation was
telephonically discussed
between counsel approximately one and a half
month prior to the hearing of the application for leave to appeal. It
is common cause
between the parties that counsel for the respondents
in the conversation had informed counsel for the applicant that the
application
for leave to appeal was out of time and that the point on
the lateness would be taken at the hearing. Counsel for the applicant
confirmed as much at the hearing of the application for leave to
appeal before Hussain J. This I hardly need to say lays the
contention
that condonation was granted finally to rest except for
one last string to the applicant’s bow which is this: Attorney
M
Sader it is contended was at fault for having failed to advise
their counsel prior to the hearing that condonation had been granted.
The contention flies in the face of the concession I have earlier
referred to that no express condonation had been granted by the
respondents at any time.
[7] For these
reasons I find that the applicant has not shown that the order of 18
October 2004 resulted from a mistake common to
the parties. The
application for the variation of the order must accordingly fail.
[8] The remainder
of the relief sought by the applicant need not detain me long and can
briefly be disposed of. It is clearly misconceived:
this court is not
sitting as a court of appeal. It may well be argued that Hussain J
for the reasons given by the judge should
have removed the
application for leave to appeal from the roll and that it was not
proper for those reasons to dismiss the application
for leave to
appeal. Accepting that to be so, the applicant’s remedy
undoubtedly should have applied for leave to appeal
against the order
on the basis that it was wrongly granted, which it has failed to do.
The relief sought in prayers 3 and 4 of
the Notice of Motion
therefore also falls to be dismissed.
[9] In the result
the application is dismissed with costs.
__
________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR
THE APPLICANT ADV M BASSLIAN
APPLICANT
’S
ATTORNEYS SADERS ATTORNEYS
COUNSEL FOR
THE RESPONDENTS ADV
(Ms) S VAN ZYL
RESPONDENT
S’
ATTORNEYS DE KLERK VERMAAK & VENNOTE
DATE OF
HEARING 28 JULY 2009
DATE OF
JUDGMENT 31 JULY 2009