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[2024] ZAGPPHC 812
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Bideasy Auctions (Pty) Ltd v Ringwood Investments 81 (Pty) Ltd and Another (Leave to Appeal) (69235/2018) [2024] ZAGPPHC 812 (22 August 2024)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG HIGH COURT
DIVISION, PRETORIA
Case
no: 69235
/2018
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
22 August 2024
SIGNATURE
In the matter between:
BIDEASY
AUCTIONS (PTY) LTD
Applicant (2
nd
Defendant)
And
RINGWOOD
INVESTMENTS 81 (PTY) LTD
1
st
Respondent (Plaintiff)
ROBYN
FRANCES BRAIDWOOD
2
nd
Respondent(1
st
Defendant)
JUDGMENT
APPLICATION FOR LEAVE
TO APPEAL
MAKHOBA, J
[1]
The applicant seeks condonation for late delivery of its Notice of
Application for leave to appeal
the judgment handed down by this
court on 1 December 2023.
[2]
The applicant is the second defendant in the
main action. The first defendant in the main action, did
not give
notice for her intention to apply for leave to appeal and does not
partake in this condonation application or in the application
for
leave to appeal.
[3]
The parties agreed that the condonation and leave to appeal
applications be heard together. The
first respondent opposed the
application.
[4]
The applicant furnished the following reasons why the delay in
filling the notice of appeal:
4.1
Counsel was abroad, and it was during December holidays. It was
impossible if not difficult to summarily
hand over the matter to
alternative counsel.
4.2
It was a lengthy trial with 3500 pages. The delay was not a long one.
4.3
The court misapplied the decision in Spenmac (Pty) Ltd.
4.4
The judgment orders joint and several
liability where no basis for such was provided by the first
respondent, and the applicant has now been to make good on funds
which it did not receive or benefit from.
4.5
It is submitted on behalf of the applicant that the applicant has a
satisfactory explanation for the
delay. The applicant has good
prospect of success on appeal. The delay was not significant or
inordinate.
4.6
The second defendant ought to be granted Leave to Appeal as another
court might find differently.
[5]
In reply the first respondent argue that the December holiday period
is irrelevant to this application
and refers the court to the
decision in
Leon
JJ Van Rensburg Attorneys v Matloto Trading (Pty) Ltd and others.
[1]
[6]
It is further argued by the first respondent that the applicant and
its representatives, being
aware of the applicable 15 Court-day
period, took no steps from 1 December 2023 to 9 January 2024 to apply
for leave to appeal.
They decidedly took their vacations and left the
matter for the new year.
[7]
It is submitted that the appeal would not have a prospect of success
and the application for leave
to appeal be dismissed with cost.
[8]
The applicant must set out the reasons
for the delay in the timeous prosecution of the appeal
as well as the
delay in seeking condonation.
[2]
[9]
In
United
Plant Hire (Pty) Ltd v Hills and Others
[3]
Holmes,
JA said: “
It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon
a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides. In this enquiry, relevant
consideration may include the degree of non-compliance with the
Rules, the explanation therefore, the prospects of success on appeal,
the importance of the case, the respondent’s interest in the
finality of his judgment, the convenience of the Court and the
avoidance of unnecessary delay in the administration of justice.”
[10]
Our courts have held that where non-compliance with the Rule has been
flagrant and gross an application for
condonation should not be
granted, whatever the prospects of success might be.
[4]
[11]
In
Siber
v Ozen Wholesalers (Pty) Ltd
[5]
Schreiner,
JA said: “It is enough for present purposes to say that the
defendant must at least furnish an explanation of his
default
sufficiently to enable the court to understand how it came about and
to assess his conduct and motives”
[12]
In
Smith
NO v Brummer NO and Another
[6]
Brink,
J considered and summarised the factors which the court must consider
in determining whether or not condonation should be
granted. These,
in short, are:
1.
whether a reasonable explanation has
been given for the neglect;
2.
whether the application is bona fide not brought with the intention
to delay the other party’s
claim;
3.
if there is absence of reckless or wilful neglect of the Court Rules;
4.
whether or not applicant’s case is ill-founded;
5.
if, where there is prejudice, such cannot be compensated with a
proper costs order.
[13]
In
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
amicus curiae)
[7]
the
court said: “
Prospect
of success pale into insignificance where, as here, there is an
inordinate delay coupled with the absence of a reasonable
explanation
for the delay”.
[14]
The attorney for the applicant states in her affidavit that on 1
December 2023, she became aware that counsel
will not be available
from 5 December 2023 but failed to discuss or arrange with counsel on
how this matter should be handled.
[15]
The attorney despite being aware of the matter she closed offices on
14 December 2023. The final instruction
to proceed with the matter
was received on 9 January 2024.
[16]
The attorney in my view did not put effort to have matter attended to
by another counsel, all what she is
saying in the affidavit is that
this was a voluminous (3500 pages) matter.
[17]
It would have made a difference if she at least tried to engage
someone to deal with the matter, but she
failed to do so.
[18]
In my view the time elapsed before the application for leave to
appeal was filed is inordinate.
[19]
The grounds raised by the applicant for leave to appeal have been
dealt with in my judgment. In my view the
are no reasonable grounds
of success on appeal.
[20]
I am satisfied that there are no prospects of success on appeal by
the applicant.
[21]
The following order is therefore made:
1.
The application for condonation and leave to appeal is dismissed.
2.
Applicant is ordered to pay the costs of the application on Scale B.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
JUDGMENT: 21 AUGUST 2024
JUDGMENT
HANDED DOWN: 22 AUGUST 2024
Appearances
:
For
the Applicant:
Adv
K. Groenewald (instructed by) Rama Annandale & Munonde
Attorneys
For
the First Respondent:
Adv
HC Hartman (instructed by) Vorster & Brant Attorneys.
[1]
Case
No: 04956/2020 Gauteng Local Division delivered on 15 July 2022 par
35.
[2]
Mulaudzi
v Old Mutual Life Insurance Co (South Africa) Ltd and others,
National Director of Public
Prosecutions
and Another v Mulandzi 2017 (6) SA90 (SCA).
[3]
1979
(1) SA 717 (A) 720 E-F.
[4]
Dairries
v Sheriff, Magistrate’s Court, Wynberg and another
1998 (3) SA
34
at 41 A-D.
[5]
1954
(2) SA 345
(A) at 353 A.
[6]
1954
(3) SA 352
at 358 A.
[7]
[2007] ZACC 24
;
2008
2 SA 472
at Par 33.