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[2012] ZALCCT 11
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Bells Bank Number One (Pty) Ltd v National Union of Mine Workers and Others (C144/08) [2012] ZALCCT 11 (1 April 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: C144/08
In the matter between:
BELLS BANK NUMBER ONE (PTY) LTD
….............................................................
Applicant
and
THE NATIONAL UNION OF MINE WORKERS
…........................................
First
Respondent
LEFU AND TWENTY OTHERS
…......................................
Second
and Further Respondent
Heard: 10 May 2011
Delivered: April 2012
Summary: Postponement application – absence of
good and strong reasons – rescission application –
wholesale disregard
of rules of Court
___________________________________________________________________
JUDGMENT
VAN VOORE AJ
[1] On 26 April 2010 Cheadle AJ handed down a judgment
against Bells Bank Number One (Pty) Ltd (the company). The company
was ordered
to,
inter alia
, retrospectively reinstate Lefu and
the 20 other individual employees previously dismissed by it and was
ordered to pay costs of
suit. Further, the employees were ordered to
report for duty by 14 May 2010. That judgment was granted
in the absence
of the company.
[2] On or about 27 May 2010 the company launched an
application an application to rescind the judgment of 26 April 2010.
The rescission application is purportedly one under rule 16A of the
rules of this Court. The hearing of the rescission application
was
set down for hearing on 11 May 2011. At the commencement of the
hearing counsel for the company applied for a postponement
of the
hearing of the rescission application. The postponement was not
granted. The reasons for that order are set out below. After
the
postponement application was dealt with counsel for the company the
applied for condonation for the late filing of the rescission
application. At the time I ordered that the parties also argue the
rescission application.
[3] A number of factual claims are made which are
unsupported by affidavits. The judgement of 26 April 2010
apparently
it came to the company’s attention on or about 28
April 2010 and the company first delivered a notice of motion
supported
by an affidavit on 27 May 2010. In the
circumstances the rescission application is out of time. When
launching the rescission
application the company did not also apply
for condonation. A condonation application was brought during
argument in this Court
on 11 May 2011. However for the reasons that
appear later in this judgment, even if accompanied by an application
for condonation,
that would not resolve the other problems with the
application.
[4] The rescission application was served on
27 May 2010. The respondents delivered an answering
affidavit on 28 June 2010.
That affidavit was nine days
late. The respondents have applied for condonation for a late filing
of the answering affidavit. That
condonation application is
unopposed. The company did not file a replying affidavit. On
12 July 2010 the Registrar issued
a directive calling upon
the parties to file heads of argument in the rescission application.
The company was required to file
heads of argument within 15 court
days of 12 July 2010. The company’s heads of argument
were due on 2 August 2010.
The company did not file heads
as required. In fact when this matter came before me on 10 May 2011
the company had still
not filed heads of argument. The late filing of
the respondents’ answering affidavit in the rescission
application is condoned.
[5] The respondents took steps to have the rescission
application enrolled for hearing. The opposed rescission application
was set
down for hearing. The respondents delivered heads of argument
on or about 29 April 2011. The notice of set down in
respect
of the enrolment of the opposed review application was
delivered to the legal representative of both parties.
[6] At the hearing of the rescission application counsel
for the company informed the Court that she was instructed on the
evening
of 9 May 2011, the day before the hearing of the
rescission application, to appear for the respondent. Counsel for the
company informed the Court that her instructions were to apply for a
postponement of the hearing of the application and to tender
costs.
Counsel further informed the Court that on Friday 9 May 2011,
two working days before the hearing of this matter
Mr O’Donavan,
the company’s attorney, wrote a letter to the respondents’
attorney requesting a postponement.
This is confirmed by the
respondents’ attorney. Counsel further informed the Court that
on the evening of 9 May 2011
she advised Mr O’Donavan,
the company’s attorney, that the writing of a letter would not
be sufficient and that an
application for a postponement must be
launched. Even assuming that an application could properly launched
on 9 May 2011,
the company advances no proper explanation
for the fact that an application for a postponement was first
launched on 10 May 2011.
The notice of set down in respect
of the rescission application was properly served on the company’s
attorney.
[7] The stated reasons which the company contends
motivates an application for a postponement are that the attorney
moved offices
in December 2010 and this matter was ‘over-looked
and omitted’ from the list of files for notices of change of
address’ and that as a consequence notices and correspondence
in this matter did not come to his attention until after a
notice of
change of address was served and filed during March 2011.
Importantly, a copy of the notice of change of address
is not
attached to the affidavit in support of the application for a
postponement. Furthermore examples of similar notices served
in other
matters in which the attorney is involved are also not attached. The
company’s explanation is not a full explanation
and is lacking
in detail. The company’s attorney says, on affidavit, that he
moved offices in December 2010. Prior to moving
offices in December
2010 he would then have been required to serve a notice of change of
address on relevant persons such as the
applicant’s attorney.
The fact that he did not do so prior to moving from his Parkmore
offices and, on his own version, only
did so during March 2011,
discloses gross negligence on his part. Even if true, and this is a
matter open to some doubt given
the absence of facts and details,
this cannot properly be the basis of an application for a
postponement.
[8] The company’s attorney further claims that he
has been required to attend to a part- heard trial set down for
hearing
in the Westonaria Magistrates’ Court for 10 May 2011.
It appears that this is offered by way of explaining his failure
to
appear in this Court on 10 May 2011. This claim, even if
true, is troubling. The company’s attorney does not
say when
the Magistrate’s Court matter was set down for hearing on
10 May 2011. He does not provide a notice of
set down or
any document in support of his claim. The attorney does not give the
Court any indication of the nature of that other
matter. Nor does the
attorney place before the Court steps taken by him in an attempt to
arrange alternative dates for the Magistrates’
Court matter,
alternatively steps timeously taken by him to arrange alternative
dates for the hearing of the opposed rescission
application.
Interestingly, it appears that the attorney’s December move and
the alleged flooding during February 2011,
to which I will
return shortly, did not impact negatively on his ability to prepare
for and be present at the Westonaria Magistrates’
Court. Given
these deficiencies in the company’s explanation, the
explanation amounts to no explanation at all and in some
respects
does not ring true.
[9] The company’s attorney further claims that his
offices were flooded during February 2011 and that in the clean-up
operation
his office file in this matter was misplaced. The attorney
goes on to say that “I have last week located the file after a
thorough search, but my client’s draft replying affidavit,
together with the consultation notes, is lost.” This appears
all too convenient. The attorney does not say precisely when during
February the flooding took place. No facts in substantiation
of the
alleged flooding are put forward. Moreover it appears that it took
from sometime in February all of March and April as well
as the first
few days of May 2011for the attorney to locate the file. This is an
extraordinarily long period. No explanation is
offered for the period
of more than two months that it took to locate the file. The attorney
does not say when he commenced the
clean-up operations. The attorney
says nothing of the extent of the flooding and so it is not possible
to assess whether a period
of more than two months is justified. It
is also significant that the timing of the location of the files
coincides rather conveniently
with the letter to the respondents’
attorney requesting a postponement of the hearing of the rescission
application. In addition,
whilst the files were apparently located
the draft replying affidavit and consultation notes were not. It is
quite remarkable that
the company’s attorney could think that
so thin and obviously problematic a purported explanation amounts to
a reasonable
explanation. Of very serious concern indeed is that the
explanation is offered in part for the failure to deliver a replying
affidavit.
The answering affidavit of 28 June 2010 was served by
registered post. A replying affidavit, if any, was due well before
the
end of July 2010. The attorney moved offices in
December 2010. By then he was in receipt of the opposing
affidavit for
at least five months. The alleged flooding took place
some time in February 2011. The attorney’s December 2010
move
and the alleged flooding of February 2011 do not and cannot
explain the failure to deliver a replying affidavit. The attorney
does not say when he first took instructions in relation to the
applicants’ answering affidavit. The fact that the attorney
thinks that a move in December 2010 and an alleged flooding in
February 2011 could explain the company’s failure
to
deliver an affidavit during July of 2010 displays gross negligence
and a wilful disregard of the rules of this Court.
[10] On the facts the December 2010 move, the other
matter at the Westonaria Magistrates’ Court and the alleged
flooding is
all that is offered in support of an application for a
postponement. Given the deficiencies and indeed serious problems with
this
explanation, I am ineluctably drawn to the conclusion that the
request for a postponement is not one made in good faith. The request
for a postponement must be viewed also against the backdrop of the
company’s failure to appear in the Labour Court on
26 April 2010.
This does disclose a pattern of
unpreparedness and attempts to avoid the alleged unfair dismissal
dispute being finally determined.
It is the position under our law
that an applicant for a postponement must show ‘good and strong
reasons’.
1
A
Court should be
slow to refuse a postponement. Where fairness and justice require it
2
I have already dealt with this above.
Further an application for a postponement must be
bona
fide
.
[11] In this matter the application
for a postponement was launched on the very day of the hearing.
Further the application is not
supported by a full and satisfactory
explanation of the circumstances that gave rise to it. In all of the
circumstances the Court
is drawn ineluctably to the conclusion that
the postponement application is indeed a tactical manoeuvre for the
purpose of obtaining
an advantage to which the company is not
entitled. This is a matter in which the prejudice caused to the
employees by a postponement
cannot be compensated by an appropriate
order of costs or indeed any ‘other ancillary mechanism’.
As matters stand
there is no replying affidavit in the opposed
rescission application. This is but one disadvantage that the company
seeks to overcome.
Differently put it appears that through the
application for a postponement the company seeks,
inter
alia
, to secure for
itself an advantage (the delivery of a replying affidavit) to which
it is plainly not entitled.
[12] In the circumstances the application for a
postponement is dismissed with costs.
The condonation application
[13] In the result the condonation application must be
dealt with. At the commencement of argument counsel for the company
handed
up an application for condonation of the late filing of the
rescission application. The judgment of Cheadle AJ came to the
attention
of the company on Wednesday 28 April 2010. A
rescission application, if any, should have been delivered by
12 May 2010.
Instead the rescission application was
delivered on or about 27 May 2010. The rescission
application is some 10 days
late. The company waited until
10 May 2011 to apply for condonation. An application was
handed up in Court on 10 May 2011.
At no time before
10 May 2011 did the company attempt to serve a condonation
application on the applicants’ attorney.
Under our law a
litigant who has failed to comply with the rules of Court must apply
for condonation without delay. This principle
was again confirmed in
the matter of
Allround Tooling (Pty) Ltd v NUMSA
[1998] 8 BLLR
847
(LAC) para 8. It took the applicant from May 2010 until
10 May 2011 to apply for condonation. Moreover, counsel for
the company informed the Court that she was instructed to apply for
condonation only in the event that the company’s postponement
application was refused. Knowing that it must apply for condonation
without delay, the company applied for condonation nearly a
full
calendar year after the rescission application was launched. The
company and its attorney have acted with wilful disregard
of the law
as it relates to the timing of a condonation application and the
rules of this Court. The irresistible inference is
that the timing of
the condonation application was, in large measure, a tactical
manoeuvre.
[14] The affidavit in support of the company’s
condonation application says nothing of its timing. This in itself is
telling.
In attempting to explain the delay the company’s
attorney’s affidavit says that Mr G Marinus (Marinus) of
Werksmanns
Attorneys, incorporating Jan S de Villiers Attorneys, was
the company’s attorney of record until 20 April 2010,
a week before the trial. It is then alleged that an agreement was
concluded between Marinus and Mr Cloete, the respondents’
attorney that the matter would not proceed on 26 April 2010
but that it would commence on Wednesday 28 April 2010.
Interestingly this assumes that the company’s attorney would be
in a position to proceed on Wednesday 28 April 2010.
However other allegations made in the affidavit appear to give the
lie to this assumption. For example it is alleged that the Court
file
was made available to the attorney on 6 May 2010 and to the
company on 8 May 2010, having been uplifted
from the Court
file on 3 May 2010. Nowhere is it alleged that the
company’s attorney was already in possession
of the Court file
or indeed a copy of the file of Marinus. In fact at paragraph 19 of
the affidavit in support of the condonation
application the company’s
attorney says that:
‘
For the purpose of acquainting myself with
the matter and drafting the rescission application I required
Marinus’ file which
contained the notes and correspondence and
client’s documents relating to this case. I was however not
able to obtain a copy
of the file. I asked the applicant to find
copies of these missing documents. However the previous owners of the
applicant had
employed an employer’s organisation Employer’s
Service Organisation of South Africa (ESOSA) to conduct the matter on
its behalf. The employer’s organisation, in turn, had
instructed Marinus. Neither of them co-operated with me or the
applicant’s
representatives. In the circumstances, it was
eventually not possible to obtain copies of the client’s
documents which had
been supplied to the employer’s
organisation and the launching of the rescission application was
considerably delayed on
account of this difficulty.’
[15] It is important to observe that in an affidavit
dated 10 May 20111 a claim is made that Marinus did not co-operate
with the
company’s attorney in his attempts to acquaint himself
with the matter and to prepare a rescission application. This
allegation
is astounding. The rescission application itself makes a
number of allegations concerning discussions and communication as
between
Marinus and Cloete. In fact in the affidavit in support of
the rescission application it is alleged that Cloete and Marinus had
reached an agreement that the matter would not proceed on
26 April 2010. The rescission application was accompanied
by an unsigned confirmatory affidavit of Marinus. The impression
sought to be conveyed to a reader of the rescission application
is
that the company’s attorney contacted Marinus and consulted
with him for the purposes of preparing a rescission application.
Nearly one year after the rescission application was launched it is
alleged that Marinus was not co-operating with the company’s
attorney and that the company’s attorney did not get from
Marinus a copy of his file. This does compromise the rescission
application itself. Either the rescission application was prepared
following consultations with and co-operation of Marinus and
information gleaned from such consultation and co-operation or it was
not. On the basis of the attorney’s affidavit of 9 May 2011
the inescapable conclusion is that there were no consultations
(telephonically or otherwise) with Marinus which informed the
preparation
of the rescission application.
[16] Moreover the company’s attorney says that the
first occasion on which a Mr Christopher Kimber (Kimber) of the
company
was available for a consultation was 27 May 2010.
This is offered apparently for the rather limited purpose of the
rescission
application. However if indeed the company’s
attorney was in a position to proceed with a trial whether on
26 April
2010 or 28 April 2010 he would have said so.
O’Donavan’s affidavit would have said that he met with Mr
Kimber
for the purposes of trial preparation before 20 April 2010
(being the date on which Marinus withdrew as the attorney of
record).
The affidavit would have said that he had familiarised himself with
most if not all of the material and relevant documents
and that he
had consulted with witnesses as part of his trial preparation before
20 April 2010. Being ready on or before
20 April 2010
is a necessary part of the applicant’s case in the rescission
application as the applicant in that
application contends that an
agreement was reached that the matter would not proceed on 26 April
but rather on 28 April 2010.
As matters stand there is no
factual basis that would properly support a conclusion that the
company had taken the necessary steps
so as to be ready for trial on
28 April 2010. The company’s attorney and the company
itself have not played open
cards with this Court. There is more that
is unsaid than said. The Court is left to make sense of allegations
which at first blush
appear to record a logical and coherent sequence
of events but on a proper reading and analysis do no such thing.
Regrettably I
am compelled to the conclusion that the company has not
applied for a postponement in good faith nor has it applied for
condonation
in good faith. The attorney’s affidavit alleges
that:
‘
(b) The Applicant seriously intended to
appear and conduct its defence at the trial hearing; and
(c) The Applicant was not aware that the Respondent would proceed
with the trial hearing on Monday, 26 April 2010;’
[17] A proper analysis of the pleading does not support
these allegations.
[18] The minimum requirements of an explanation were set
out in
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A)
353 where it was said that:
‘
The defendant must at least furnish an
explanation of his own default sufficiently full to enable the Court
to understand how it
really came about, and to assess his conduct and
motives.’
[19] In further attempting to explain the delay the
company’s attorney again seeks to rely on an alleged agreement
between
Marinus and Cloete. I have sufficiently dealt with this
issue.
[20] In addition the company’s attorney alleges
that he was unable to attend to the preparation of a rescission
application
timeously because of other commitments and in particular
CCMA arbitrations on Monday 11 May, Thursday 13 May and Friday
14 May 2010.
This does not improve the company’s
position. So busy an attorney ought not to accept an instruction in
circumstances where
the previous attorney of record withdrew some
four days before the date of trial. The attorney would have known of
his many other
commitments well before 20 April 2010. One
must assume that, with an awareness of the consequences for his
client should
he be unable to properly execute its instructions, he
accepted the mandate. In those circumstances, the explanation that he
was
overly busy is not available to the company’s attorney.
[21] The explanation offered for the failure to apply
for condonation earlier amounts to no explanation at all,
alternatively is
at best very weak. The manner in which the company
and the attorney have conducted this litigation since late April 2010
discloses
a disregard of the rules of Court and the law in relation
to the timing of a condonation application. This conduct is indeed
wilful.
On this ground alone, condonation should properly be refused.
The rescission application
[22] I have nonetheless considered the rescission
application. The company alleges an agreement between Marinus and
Cloete that
the trial would not proceed on 26 April 2010. There is
nothing by way of factual matter that supports the allegation that
such
an agreement was reached. The rescission application makes a
number of allegations in relation to Marinus and his dealings with
Cloete. No confirmatory affidavit has been filed from Marinus. In the
circumstances the company was required to be present in Court
on
26 April 2010 and there is no proper explanation for its
absence. In the matter of
Grant v Plemmers (Pty) Ltd
1949 (2)
SA 470
(O) the Court held that a party must:
‘
must give a reasonable explanation for his
default. If it appears that his default was wilful or that it was due
to gross negligence,
the Court should not come to his assistance.’
[23] The National Union of Mine Workers (the union) and
Lefu and the 20 other individual employees (the employees) referred
an alleged
unfair dismissal dispute to this Court for adjudication. A
notice of set down was issued on informing the parties that the trial
had been set down for the period 26 to 30 April 2010. Both
parties received that notice of set down. Cloete representing
the
union and the employees was in Court on 26 April 2010. The company
was not. Until 20 April 2010 the company was represented
by
Jan S de Villiers attorneys. Jan S de Villiers withdrew as the
attorneys of record on 20 April 2010. The circumstances
in
which they withdrew or the reasons for their withdrawal are not
canvassed in the papers presently before this Court. On 26 April 2010
the matter was called and indeed heard. After hearing the case of the
union and employees a judgment was handed down against the
company.
[24] One of the company’s principal grounds is
that there was an agreement between its then attorneys of record, Jan
S de
Villiers, and Mr Cloete on behalf of the union and the employees
that the matter would not in fact proceed on 26 April 2010
but rather on some later date. In support of the claim that there was
such an agreement the company relies on communications between
its
then attorneys of record (Jan S de Villiers) and Cloete. The company
makes the claim that during March 2010 there was
a discussion
between the attorneys regarding the issue of the trial date as
allocated by the registrar and that this discussion
led to an
agreement that the trial of the matter would commence on Wednesday
28 April 2010 and not on 26 April 2010.
The company further
claims that the registrar was persuaded by the parties’
respective legal representatives to permit the
matter to start on
Wednesday 28 April 2010 rather than on Monday
26 April 2010. Moreover the company claims
that its then
attorney discussed the issue of the ‘date of the commencement
of the trial with Cloete again on 15 or 16 April 2010’
and that Cloete confirmed his agreement that the trial would commence
on Wednesday 28 April 2010.
[25] On the back of these claims held up as evidence of
agreement the company makes a number of very serious allegations
against
Cloete. The company contends that Cloete was under a duty to
‘honour his agreement’ and to inform the Court of the
‘existence of the agreement’. The company goes further
and says that Cloete failed to keep his word. These are serious
allegations. However a proper assessment of matters sees a very
different picture emerging. The company’s rescission
application
is supported by the affidavit of one Kimber. A number of
material factual claims are made in Kimber’s affidavit in
relation
to communications and contact that the company’s
previous attorneys apparently had with Cloete. These are matters that
are
not within Kimber’s knowledge. The file contains an
unsigned confirmatory affidavit in the name of the company’s
previous
attorney of record. That affidavit remains unsigned and
accordingly there is no confirmatory affidavit before this Court.
There
is no substantiation of the claims made of an agreement which
flowed out of various alleged communications between the attorneys.
To obtain such an affidavit from the company’s then attorneys
of record would not be a difficult task. If the claims made
in
relation to the company’s then attorneys of record and Cloete
are true (did in fact come to pass) then there is no good
reason why
those claims would not be confirmed on affidavit. The absence of such
an affidavit is telling. In the circumstances
the company’s
claims of an agreement that the matter would not proceed on
26 April 2010 (even assuming that such
an agreement could
be concluded without the support or sanction of the registrar or
indeed the Judge allocated to hear the matter)
are without proper
foundation. Absent proof of an agreement that the matter would not
proceed on 26 April 2010, the company’s
rescission application
is seriously compromised. As at that date of the hearing of the
rescission application the company had not
advanced any proof in
support of its claims of an agreement between the attorneys.
[26] A number of very serious allegations were made
against Cloete. As matters stand, these allegations are
unsubstantiated and
have no support in the facts of what transpired.
A party, and in particular one is legally represented, would be well
advised to
be quite sure of the facts prior to making such serious
and potentially damaging allegations. It appears that the company, in
pursuit
of its attempts to undo a judgment granted against it, was
quick to charge dishonour and unethical behaviour against Cloete.
Those
allegations against Cloete are entirely without foundation.
When the matter came before me on 10 May 2011 there was
still
nothing by way of substantiation of the company’s claims
of agreement. This Court cannot tolerate conduct such as that
displayed
by the company.
[27] The legal principles in relation to an application
for rescission of a default judgment in this Court are well known. An
applicant
in a rescission application must demonstrate a reasonable
explanation for the default and in relation to the merits of the
dispute,
a
bona fide
defence which,
prima facie
,
carries some prospect of success.
[28] In the matter of
Chetty v Law Society, Transvaal
(1985) (2) (7) 56 (AD) the Court held that:
‘
But it is clear that in principle and the
longstanding practice of our Courts two essential elements of
‘sufficient cause’
for rescission of a judgment by
default are:
That the party seeking relief must present a reasonable and
acceptable explanation for his default; and
That on the merits such party has a
bona fide
defence which,
prima facie carries some prospect of success. (
De Wet’s
case Supra at 1042:
P E Bosman Transport Works Committee and
Others v Piet Bosman Transport (Pty) Ltd
1980 (4) SA 794
(A):
Smith N.O. v Brummer and Another: Smith N.O. v Brummer
1945
(3) SA 352
(O) at 357-8.)
It is not sufficient if only one of these two requirements is met for
obvious reasons a party showing no prospect of success on
the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default. An ordered judicial process would be neglected if, on
the other hand, a party who could offer no
explanation of his default
other than his disdain of the Rules was nevertheless permitted to
have a judgment against him rescinded
on the ground that he had
reasonable prospects of success on the merits. The reason for my
saying that the Applicant’s application
for rescission fails on
its own demerits is that I am unable to find in his lengthy founding
affidavit, or elsewhere in the papers,
any reasonable or satisfactory
explanation of his default and total failure to offer any opposition
whatever to the confirmation
on 16 September 1980 of the
rule nisi
issued on 22 April 1980,’
[29] The company absented itself from Court on 26 April
2010. It alleges that that absence was the result of an agreement
between
the attorneys that the matter would not proceed on 26 April
2010. As appears from the respondents’ answering affidavit,
Cloete
denies such an agreement. The other party to the alleged
agreement, Mr Grant Marinus (Marinus) of Jan S De Villiers has not
confirmed
that such an agreement was reached. Marinus withdrew as the
company’s attorneys of record on 20 April 2010, just days
before
the trial. In the rescission application it is not alleged
that the company’s new attorneys of record consulted with
Marinus
in the preparation of the rescission application. It is not
alleged that he initially co-operated but subsequently refused to
co-operate.
Nothing of the sort is offered.
[30] On the basis of the facts before this Court, the
only reasonable conclusion is that there was no agreement that the
trial would
not commence on 26 April 2010. The consequence of this is
that the company’s default in appearing at Court on 26 April
2010
cannot be explained by an agreement the matter would not proceed
on that day. The company has offered no reasonable or satisfactory
explanation for its failure to appear in Court on 26 April 2010.
In the result the company has offered no reasonable
explanation
whatsoever for its failure to be in Court on 26 April 2010.
[31] In all of the circumstances I make the following
order:
The application for a postponement is dismissed with
costs.
The application for condonation is dismissed with
costs.
The application to rescind the judgement of
26 April 2010 is dismissed with costs.
___________________
VAN VOORE AJ
Appearances:
For the Applicant: Adv S. Harvey
Instructed by: Patrick O’Donavan Attorneys
For the Respondents: N. Cloete
Instructed by: N. Cloete Attorneys Inc.
1
McCathy
Retail Ltd v Shortdistance Carriers CC
2001 (3) SA 482
(SCA) at
494D.
2
Madintsky
v Posenberg
1949 (2) SA 392
(A) at 398 – 9