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
>>
2024
>>
[2024] ZAFSHC 332
|
|
M.N v B.N - Leave to Appeal (210/2016) [2024] ZAFSHC 332 (25 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 210/2016
In
the matter between:
MN
Applicant/Plaintiff
and
BN
Respondent/Defendant
Coram:
Van
Zyl, J
Heard
: 20
September 2024
Delivered
: 25
October 2024
Summary
:
Application
for leave to appeal – test for – condonation –
failure to adequately explain delay – prospects
of success not
good – the application for condonation and, consequently, the
application for leave to appeal, dismissed,
with costs, counsel`s
fees on scale B.
ORDER
1.
The application for condonation and, consequently, the application
for leave to appeal, are dismissed,
with costs, with counsel`s fees
to be taxed on scale B.
JUDGMENT
Van
Zyl, J
[1] This
is an application for leave to appeal against the order which I made
and the judgment I delivered in terms whereof
I dismissed the
applicant`s/plaintiff`s claim and ordered him to pay the costs of the
proceedings. I will refer to the parties
as in the present
proceedings.
[2]
Section 17(1)(a) of the Superior Courts Act, 10 of 2013 (‘the
Act’), determines as follows:
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)(i)
the appeal
would
have a reasonable prospect of success; or
there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
…’ (My emphasis)
[3]
In
Acting National Director of Public Prosecutions v Democratic
Alliance In Re Democratic Alliance v Acting National Director of
Public
Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016),
the court held (at paragraph 25 of the judgment) that the Act has
raised the bar
for granting leave to appeal and in this regard it
referred to the judgment of
The Mont Chevaux Trust (IT 2012/28) v
Tina Goosen and 18 Others
2014 JDR 2325 (LCC), where the
following was stated:
‘
It
is clear that the threshold for granting leave to appeal
against a judgment of a High Court has been
raised
in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that another court
might come to a different conclusion, see
Van
Heerden v Cronwright & Others
1985
(2) SA 342
(T)
at 343H.
The
use of the word "would" in the new statute
indicates a measure of certainty that another court
will
differ from the court whose judgment is sought to be appealed
against.’
See
also
Rohde v S
2020 (1) SACR 329
(SCA) para 8 and
Fair-Trade
Independent Tobacco Association v President of the Republic of South
Africa and Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020)
para 4.
[4]
In
M
unicipality of Thabazimbi v Badenhorst
(66933/2011)
[2024] ZAGPPHC 195 (26 February 2024) paras 9 – 10 the court
also dealt with the more stringent test for an
application for leave
to appeal and held,
inter alia
, as follows:
‘
[9] …
A possibility and discretion were therefore, in the words of the
legislation and consciously so, amended to a
mandatory obligatory
requirement that leave may not be granted if there is no reasonable
prospect that the appeal will succeed.
It
must be a reasonable prospect of success; not that another Court may
hold another view.
[10]
The Court
a quo
may
not allow for one party to be unnecessarily put through the trauma
and costs and delay of an appeal. …
[11]
In
MEC Health, Eastern Cape v
Mkhitha
(1221/2015)
[2016] ZASCA 176
(25 November 2016)
t
he Supreme Court of Appeal held:
"
… [17]
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal."’
[5]
In considering whether there is some other compelling
reason why the proposed appeal should be heard, as provided
for in
section 17(1)(a)(ii) of the Act, an important question of law or a
discrete issue of public importance that will have an
effect on
future disputes, may constitute such a compelling reason. However,
the merits thereof still need to be considered in
deciding whether to
grant leave to appeal or not. In
Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd
2020 (5) SA 35
(SCA) para 2 the Supreme Court
of Appeal determined as follows in this regard:
‘
[2]
In order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii) of
the
Superior Courts Act an
applicant for leave must satisfy the court
that the appeal would have a reasonable prospect of success or that
there is some other
compelling reason why the appeal should be heard.
If the court is unpersuaded of the prospects of success, it must
still enquire
into whether there is a compelling reason to entertain
the appeal. A compelling reason includes an important question of law
or
a discrete issue of public importance that will have an effect on
future disputes.
But
here too, the merits remain vitally important and are often
decisive. Caratco must satisfy this court that it has
met
this threshold
.’
(My emphasis)
See
also
Poulter v Commissioner for South African Revenue Service
(Leave to Appeal) (A88/2023) [2024] ZAWCHC 100 (28 June 2024).
[6]
Uniform
rule 49(1)(
a
) and (
b
) determine as follows:
‘
(1)
(a)
When
leave to appeal is required, it may on a statement of the grounds
therefor be requested at the time of the judgment or
order.
(b)
When
leave to appeal is required and it has not been requested at the time
of the judgment or order, application for such
leave shall be made
and the grounds therefor shall be furnished within fifteen days after
the date of the order appealed against:
Provided that when the
reasons or the full reasons for the court’s order are given on
a later date than the date of the order,
such application may be made
within fifteen days after such later date: Provided further that the
court may, upon good cause shown,
extend the aforementioned periods
of fifteen days.’
(My emphasis)
[7]
The chronology of pertinent events and steps leading up to this
application, are as follows:
(a)
The trial was conducted on 12 &13 September 2017, 12 December
2017, 6 & 7 March 2018 and 19 April
2018.
(b)
Final arguments pursuant to the hearing of the evidence
were advanced on 14 June 2018.
(c)
My order (dismissing the claim) was made on 13 December 2018 after
both parties received prior notice of the
proposed issuing thereof.
(d)
Reasons for the said order were requested on 18 December 2018.
(e)
My reasons for the aforesaid order (‘my judgment’) was
unfortunately only made available on 13
June 2023.
(f)
The application for leave to appeal and, by then, the necessary
application for condonation for the
late filing thereof, was filed on
12 August 2024.
(g)
The application for condonation and leave to appeal were heard on 20
September 2024.
[8]
It is trite than in an application for condonation an applicant
should explain, comprehensively, the reasons
for his delay and/or his
failure to adhere to and comply with the prescribed time limits with
which he was obliged to comply. There
is an obligation on an
applicant in a condonation application to explain each period of
delay. In
High Tech Transformers (Pty) Ltd v Lombard
(2012) 33
ILJ 919 (LC) the importance of a reasonable and acceptable
explanation for a delay was accentuated at para 25 of the
judgment:
‘
[25]
. . . Condonation is not merely for the asking as was duly
pointed out by the court in
NUMSA
& another v Hillside Aluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC):
“
[12]
Additionally, there should be an acceptable explanation tendered in
respect of each period of delay. Condonation is not there
simply
for the asking. Applications for condonation are not a mere
formality. The onus rests on the applicant to satisfy the
court of
the existence of good cause and this requires a full, acceptable and
ultimately reasonable explanation. … Nevertheless,
to do
justice to the aims of the legislation, parties seeking condonation
for non-compliance are obliged to set out full explanations
for each
and every delay throughout the process. …”’
[9]
An applicant should also show that he has reasonable prospects of
success in the process for which he seeks
condonation to proceed with
(in the present matter that would be that there are prospects that
the court which will entertain the
appeal would come to another
conclusion). In this regard the following applicable principle was
stated in
Democratic Alliance v President of the Republic of South
Africa
(21424/2020) [2020] ZAGPPHC 326 (29 July 2020) para 5:
‘
[5] This
dictum serves to emphasis a vital point: Leave to appeal is not
simply for the taking. A balance between the
rights of the party
which was successful before the court a quo and the rights
of the losing party seeking leave to appeal
need to be established so
that the absence of a realistic chance of succeeding on appeal
dictates that the balance must be struck
in favour of the party which
was initially successful.’
[10]
In
PAF v SCF
2022(6) SA 162 (SCA) para 21 the Supreme Court of
Appeal held as follows:
‘
[21]
A court considering a condonation application exercises a
discretion in the true sense, upon consideration of all the
circumstances of each case. In
Aurecon
South Africa (Pty) Ltd v Cape Town City
2016
(2) SA 199
(SCA)
([2016]
1 All SA 313
;
[2015] ZASCA 209)
para 17 it was held
that
the relevant factors in that enquiry generally include the nature of
the relief sought; the extent and cause of the delay;
its effect on
the administration of justice and other litigants; the reasonableness
of the explanation for the delay, which must
cover the whole period
of delay; the importance of the issue to be raised; and the prospects
of success. The onus is on the applicant
to satisfy the court
that condonation should be granted.’
[11]
I shall also accept that good prospects of success on the merits can
serve to scrutinize the explanation tendered for
the delay somewhat
less strictly. In
Melane v Santam Insurance
1962 (4) SA 531
(A) at 532 E-F this principle is stated as follows:
‘
What
is needed is an objective
conspectus
of
all the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not
strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's
interest in
finality must not be overlooked.’
[12]
My judgment in this matter has been reported as
MN
v BN
2023
(5) SA 519 (FB); [2023] 3 All SA 809 (FB);
(210/2016)
[2023] ZAFSHC 236 (13 June 2023)
.
I, as objectively as is humanly possible, believe that my judgment
reflects and is testimony of the time and effort which went
into
preparing it despite the delay in delivering same.
[13]
In the applicant`s application for condonation, the applicant, rather
comprehensively, referred to the, admittedly inordinate,
delay
between my order of 13 December 2018, his request for the reasons for
the order which I made and, eventually, my furnishing
of my reasons
therefor.
[14]
Although such delay may have prejudiced the applicant in other
contexts, he, however, failed to explain how he (or his
attorney) was
thereby impeded from complying with his obligation to timeously file
his application for leave to appeal.
[15]
I do not propose to, herein, explain or proffer excuses for the delay
on my part,
inter alia,
because such delay has been reported
to the JCC and is already the subject matter of proceedings by such
institution. The applicant
and, of course, the respondent,
nevertheless and regardless of the reasons for the delay, deserve my
sincere apology therefor and
it is hereby proffered and recorded.
The
reasons for the late filing of the application for leave to appeal:
[16]
An affidavit deposed to by the applicant`s attorney of record was
filed with the application for leave to appeal in support
of the
applicant`s application for condonation for the late filing of his
application for leave to appeal. An answering affidavit
deposed to by
the respondent`s attorney was filed in opposition to the founding
affidavit. Heads of argument were also filed on
behalf of both
parties.
[17]
The reasons for the order were sent via e-mail to the respective
attorneys of record on 13 June 2023, as evident from annexure
‘HJS1’
attached to the answering affidavit. However, according to the
applicant`s attorney of record she only became
aware of the reasons
on or about 20 June 2023. Based on the date of 20 June 2023, the
applicant should have lodged his application
for leave to appeal by
11 July 2023. The applicant`s application for leave to appeal and his
application for condonation was only
filed on 12 August 2024. In
respect of the said delay, the applicant`s attorney of record,
inter
alia,
avers as follows in the application for condonation:
’
16.
After I learned that the reasons for the order had been given, I
informed the Applicant that he had the option
to apply for leave to
appeal against the order and reasons, however, he needed some time to
consider the implications thereof.
17.
During November 2023 the Applicant instructed me to proceed with the
application for condonation and
for application for leave to appeal.
18.
Upon receiving his instructions, I immediately proceeded to brief
counsel to draft the necessary documents.
19.
In spite of constant follow-up calls, whatsapp messages, e-mails and
attempted consultations at chambers,
counsel could not provide me
with the documents until June 2024, at which time counsel informed
the Applicant that it was his opinion
that there were little
prospects of success in pursuing an appeal and therefore advised the
Applicant against proceeding with the
application for condonation and
for leave to appeal.
…
29.
The Applicant considered the opinion of counsel, however, he still
wanted to proceed with the application
for leave to appeal, being
convinced that he had good prospects of success.
…
31.
Counsel who had been briefed to draft the papers in November 2023
could, however, not take on the matter
and new counsel was instructed
to proceed with the application.’
[18]
During arguments in support of the application for condonation, the
applicant`s counsel conceded – justifiably,
I believe –
that he applicant has failed to comprehensively or, even, adequately,
explain or provide acceptable reasons for
his delay, especially so in
respect of the delay between 20 June 2023 and 9 November 2023. In
addition, in my view, the deponent
contradicted herself in relation
to the applicant`s reasons or explanations for the aforesaid delay,
which contradictions are apparent
from the following three paragraphs
in the affidavit filed in support of the application for condonation:
’
16.
After I learned that the reasons for the order had been given, I
informed the Applicant that he had the option
to apply for leave to
appeal against the order and reasons, however,
he
needed some time to consider the implications thereof
.
…
23.
The Applicant is well aware that there has been an inordinate delay
in bringing this application, however,
he,
at all relevant times,
wished to proceed with the application for leave to appeal
.
…
25.
From 20 June 2023 until 9 November 2023,
in anticipation of an
outcome in the complaint being considered by the JCC, the Applicant
held off in giving further instructions
on the application for leave
to appeal
.’ [My emphasis]
[19]
The JCC`s decision could in any event not have had any bearing on the
applicant’s decision in relation to the merits
of the
application for leave to appeal or on his wish or decision to appeal
the order and judgment.
[20]
Taking into account the margin with which the applicant failed to
comply with Uniform
rule 49(1)(
b)
, his explanation therefor
does not even approach a passing of the test laid down in the said
Rule and the applicable authorities.
In his attorney`s affidavit, and
during argument, it was suggested that the applicant contemplated
whether to apply for leave to
appeal for almost 6 months. Even if
that was so, I think he was obliged – and that it would have
been prudent – to
have timeously filed the application and
then, if he decided or was advised not to pursue it, merely to have
withdrawn the application.
The
merits of the proposed appeal:
[21]
The only question which then remains, is whether the applicant`s
prospects of appeal are so strong, or even, viable,
that I can, at
least to some extent, overlook his aforesaid failure in respect of
adequately explaining the delay.
[22]
I do not intend repeating all the grounds of the proposed appeal,
since same already form part of the record. I do, however,
deem it
necessary to,
inter alia
, quote the following grounds:
‘
8.
At the end of the day, the Respondent claimed maintenance from the
Applicant for a child which
she had conceived from another man and
she should at least have had some inclination that the child might
not be her husband`s
child.
9.
The case goes deeper than the mere question of whether the Applicant
should be compensated for
the maintenance which he had paid for a
child that is not his biological daughter.
10.
Ultimately, the case leaves one with the
moral
question
of whether a man should be held responsible for paying maintenance of
a child when he had made it abundantly clear that he did
not want
more children and even went as far as to book an appointment for an
abortion, but the Respondent decided to keep the baby
at the expense
of the Applicant.’ (My emphasis)
[23]
As correctly pointed out by the respondent`s counsel, the submissions
in the heads of argument filed on behalf of the
applicant, as well as
the oral argument presented on behalf of the applicant, are not in
line with the grounds of appeal referred
to above. The applicant
conceded in evidence that had he known that he was not the biological
father of the child, he would still
have financially supported her.
According to the applicant`s arguments this should not preclude him
from claiming back the financial
contributions which he had made
towards the minor child; at most, it should only lead to a reduction
in the amount claimed. This
was not the applicant`s case before court
in the trial; nor a ground of appeal.
[24]
It is also evident from the whole of my judgment and the authorities
referred to that it is essential to distinguish between
‘
a
moral question
’ or ‘
moral duty
’ as
opposed to a ‘
legal question’
or ‘
legal
duty’.
[25]
The applicant also raised the following ground of appeal at paragraph
5 of his application for leave to appeal:
‘
5.
Although the cases referred to does not place an
obligation on a wife to inform her husband that a child may
not be
his, it is respectfully submitted, that this obligation should change
after divorce.’
[26]
The aforesaid ground of appeal was argued by the applicant`s counsel
on a generalised basis that it would be fair for
the law to be
changed or developed accordingly, without any reference to the
particular facts of the present matter and the cause
of action and
defences as pleaded. It was also not the applicant`s case during the
trial.
[27]
Counsel for the applicant referred to and attempted to rely on what
she cited as, ‘the unreported judgment of
Nel v Jonker
(
WCHC), case number A653/2009, dated 17 February 2001’, and
as discussed in
Obiter, Vol 33, No. 1 (2012).
However, apart
from the fact that that claim was unsuccessful on appeal, the cause
of action relied upon in that matter was enrichment
and not fraud
like in the present matter and is therefore distinguishable. In
addition, the said judgment is indeed reported as
MN v AJ
2013
(3) SA 26
(WCC) and I extensively dealt therewith and a discussion
thereof at paragraphs 189 -190, read with paragraph 198, of my
judgment.
The article in
Obiter
referred to by the applicant`s
counsel in her heads of argument and in her oral argument does not
take the matter any further.
[28]
I concluded as follows at paragraph 199 of my judgment regarding the
merits of the applicant`s claim and the defences
pleaded by the
respondent:
‘
[199]
In addition to my findings that the plaintiff did not prove his claim
on the basis of fraud, I furthermore find that his claim
is
contra
bonos mores
and
against public policy and can for this reason also and/or in any
event not succeed.’
[29]
The application for leave to appeal does not contain a single ground
upon which the applicant avers that I erred in any
respect in having
concluded as aforesaid.
[30]
In my view the answer to the question regarding the applicant`s
prospects of success on appeal does, consequently, also
not favour
the applicant. I have regard thereto that the law which apply to the
applicant`s cause of action in the circumstances
of the present
matter, is somewhat novel and therefore may constitute a compelling
reason why the appeal should be heard. However,
as evident from the
applicable authorities referred to earlier in this judgment, the
merits remain vitally important and it is
for the applicant to
satisfy the court that he has met the threshold. I cannot with any
degree of conviction opine or find that
another court would come to
another or different conclusion than the one which I came to and
which is recorded in my judgment.
[31]
The respondent is also entitled to finalisation of the litigation
between the parties and she should not unnecessarily
be put through
the further trauma, costs and delay of an appeal in the absence of a
sound, rational basis to conclude that there
is a reasonable prospect
that the appeal would succeed.
[32]
The application for condonation for the late filing of the
application for leave to appeal and, hence, the application
for leave
to appeal as such, can consequently not be successful.
Costs:
[33]
There is no reason why costs should not follow the outcome.
[34]
With reference to Uniform
rule 67A(3)
, read with Uniform
rule 69(7)
,
I agree with
Ghubhelabm (Pty) Ltd v R.A.W. Truck Trading CC
(B3217/2023) [2024] ZAGPPHC 460 (26 April 2024), where the court
found as follows at para 27 of the judgment:
‘
Costs
orders, including the assessment of the appropriate
Rule 69
scale,
remain a matter for the exercise of judicial discretion.’
[35]
In view of the totality of the factors to be considered in terms of
Uniform
Rule 67(A)(3)(b)
, as well as the facts and circumstances of
the present matter, I agree with the submission of the respondent`s
counsel that the
appropriate scale of counsel`s fees is scale B.
Order:
[36]
The following order is made:
1.
The application for condonation and, consequently, the application
for leave to appeal, are dismissed,
with costs, with counsel`s fees
to be taxed on scale B.
C.
VAN ZYL, J
Appearances
For
the applicant:
Adv.
N. van der Sandt
Instructed
by:
Conradie
Attorneys
Bloemfontein
E-mail:
anet@conradieatt.co.za
For
the respondent:
Adv.
P.C. Ploos van Amstel
Instructed
by:
Stander
and Associates
Bloemfontein.
E-mail:
rikus@stanprok.co.za
hanro@stanprok.co.za