Dhlamini v Kubushi (LA206/2005) [2006] ZAFSHC 126 (9 November 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2006
>>
[2006] ZAFSHC 126
|

|

Dhlamini v Kubushi (LA206/2005) [2006] ZAFSHC 126 (9 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: LA206/2005
In the appeal between:
PAULOS
DHLAMINI
Appellant
and
E M
KUBUSHI
Respondent
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
8 NOVEMBER 2006
_____________________________________________________
DELIVERED ON:
9 NOVEMBER 2006
_____________________________________________________
[1] The applicant applies for leave to appeal to the full Bench of
this Division against the whole of the judgement delivered in
this
matter on the various grounds mentioned in his Notice of Application
for Leave to Appeal dated the 21
st
November 2005.
[2] The gravamen of the
applicant’s complaint appears to be that this court erred in
finding that the defendant/respondent discharged
the onus she carried
of showing on a balance of probabilities that the plaintiff/applicant
could, with the exercise of reasonable
care, have acquired knowledge
of the facts from which the debt arose and instituted summons prior
to the expiration of the prescriptive
period of 3 years.
In this context, Mr.
Röntgen who appears on behalf of the applicant referred me to the
authority of
DITEDU
v TAYOB
2006 (2) SA 176
(W).
[3] Mr. Cronje has
opposed the application on behalf of the defendant/respondent on the
basis that the facts in
TAYOB
are
distinguishable from those in the present case where the applicant
has a Standard 3 education; was in a position to read and write
as
was manifest from the letters he had written requesting transfer of
his file to his present attorneys of record and that he had
waited 8
years prior to making any claim on grounds of negligence against the
defendant, and that he only did so, once he found himself
in indigent
circumstances.
[4] In my view, however,
the fact that this matter was decided by me purely on credibility
findings based on the probabilities as
I saw them, moves me to grant
leave on the basis of the very reasonable prospect of another court
finding differently on the probabilities
and, possibly, finding that
they favour the plaintiff rather than the defendant. Leave is
accordingly granted to the applicant to
appeal to the full Bench of
this Division on all of the grounds mentioned in its said notice.
[5] Prior to hearing
argument, on this application, I was referred to an application for
condonation brought by the applicant in respect
of its legal
representative’s failure to appear in court on the 20
th
June 2006 when the application for leave to appeal had initially been
enrolled for hearing. On that occasion the application was
struck
off the Roll. The question of the respondent’s wasted costs stood
over for determination. After hearing submissions today
on this
aspect of the matter, I have not been able to find any reason why the
applicant should not be ordered to bear those costs.
[6] Accordingly the
following order is made:
The application for
condonation is granted.
The applicant is
ordered to pay the respondent’s wasted costs for the 20
th
June 2006.
Leave to appeal is
granted to the applicant to appeal to the full Bench of this
Division against the whole of the judgement in
this matter on the
grounds set out in applicant’s notice dated 21
st
November 2005.
The costs of the
application for leave to appeal shall be costs in the appeal.
_____________
S. EBRAHIM, J
On
behalf of appellant: Adv. K. M. Röntgen (Snr)
Instructed by:
Bothma Nothnagel & Röntgen
BRAKPAN
On
behalf of respondent: Adv. P. R. Cronje
Instructed by:
Naudes
BLOEMFONTEIN
/em