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17 April 2024 . The judgment appealed against concerned an application by
applicant/defendant to uplift the bar to plead, which was dismissed with costs, including the
costs of two counsel.
[2] Despite filing the Notice for Leave to Appeal, the applicant failed to set the matter down for
hearing or to arrange a hearing date with me, resulting in it being ipso facto barred.
Instead, the respondent set the matter down, as evidenced by the Notice of Set Down,
dated 21 February 2025, which was electronically served on the State Attorney’s offices, the
applicant’s attorneys, on the same date, followed by service of a hard copy on 24 February
2025.
[3] The applicant’s papers provided no explanation for the failure to set the application down
timeously , as required by the consolidated practice directive of the Gauteng Division of the
High Court. Nor did they offer any reason for not arranging a hearing date with the registrar
or with me. As noted, the respondent took the initiative to set the matter down, after which
a hearing date was arranged with me on or about 17 to 24 February 2025. This conduct
reflects a lackadaisical approach by the app licant towards the finalization of this matter.
[4] I will outline the applicable legal principles set out in section 17(1)(a)(i)(ii) and (c) of the
Superior Courts Act 10 of 2013, which the applicant must establish to succeed in its
application for leave to appeal. Under this section, leave to appea l may only be granted if
the judge is satisfied that:
(a) The appeal WOULD (NOT MIGHT) have a reasonable prospect of success; or
(b) There is some other compelling reason why the appeal should be heard including
conflicting judgments on the matter under consideration, and
(c) Where the decision sought to be appealed against does not dispose with all the issues
in the case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.
[5] The applicant’s grounds for leave to appeal are outlined in its Notice of Application for Leave
to Appeal dated 2 May 2024. I will not verbatim repeat these grounds, but they should be
incorporated herein by reference to the Notice for Leave to Appe al. I will deal with these
grounds below.
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[6] Both parties filed heads of argument, in which their arguments are outlined, which should
be incorporated herein by reference to the parties’ respective heads.
[7] The judgment against which the application for leave to appeal is filed pertains to an
applica tion for the upliftment of the bar to enable the applicant to file its plea.
[8] An application for the upliftment of bar is an application in terms of Rule 27 of the Uniform
Rules of Court, which governs extensions of time, removal of bars, and condonation. To
succeed in such an application, the applicant must show ‘ good cause ’. The court has a broad
discretion in this regard. ‘Good cause’ requires the following:
(a) Satisfactory Explanation for the Delay :
The applicant must file an affidavit that adequately explains the delay. This means
providing a sufficiently detailed account to enable the court to understand how the default occurred and to assess the applicant’s conduct and motives. The applicant addresses this in paragraphs 6 to 7 of its Notice for Leave to Appeal.
(b) Existence of a Bona Fide Defence:
The applicant must demonstrate a bona fide defence based on factual grounds which, if
proven, would constitute a valid defence. The alleged defences are set out in paragraphs 4.1 to 4.2.8 of the Notice for Leave to Appeal.
(c) Consideration of Prejudice:
The court must assess whether granting or refusing the application would cause prejudice
to either party.
[9] In my judgment, I found the explanation for the delay and/or default unsatisfactory due to a lack of sufficient details to enable me to fully understand the circumstances surrounding the default. As noted in paragraph 22 of my judgment, read with paragra ph
41, I agreed with the Respondent’s submissions that the assertions of the deponent to the founding affidavit - the Director of Legal Services of the Department of Water and
Sanitation – were inadequately substantiated. The claim that the State Attorne y’s email
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server was down during the period the notice was sent lacked specifics, such as the
duration, cause, and extent of the outage. Without supporting facts, this assertion did not fall within the deponent’s personal knowledge and amounted to inadmissible hear say
evidence.
[10] Moreover, the applicant/defendant failed to provide a transmission report to confirm the alleged non -delivery of the notice from the destination server. In contrast, the
respondent/plaintiff attached a copy of the notice of bar and the email confirma tion of
service to its answering affidavit (annexure “AA2”) (paragraphs 6 of the judgment). Additionally, no confirmatory affidavit was submitted by the IT official from the State Attorney’s office or any other relevant person to substantiate the deponent’ s claims. The
judgment also notes, based on the evidence, that email was the agreed method of service. Furthermore, no explanation was provided for the late filing of the Notice of Intention to Defend (paragraph 5 of the judgment) or the failure to submi t a plea within the prescribed
20-day period in terms of Rule 22(1) of the Uniform Rules of Court (paragraph 6 of the
judgment). Consequently, the applicant, in seeking the upliftment of the bar, failed to meet this requirement.
[11] Regarding the second requirement – establishing a bona fide defence with reasonable
prospects of success – I dismissed the application because the applicant/defendant failed
to present admissible evidence. It was found that the deponent to the
applicant’s/defendant’s founding affidavit lacks personal knowledge of the material facts, rendering it hearsay evidence, which is not admissible. Consequently, there is no need to further consider the merits of the application for upliftment (paragraph 45 of j udgment).
I found that the founding affidavit relied entirely on inadmissible hearsay from a deponent who lacked personal knowledge of the facts. None of the allegations were substantiated with confirmatory affidavits from relevant parties. Accordingly, there was no evidence
before me to consider. The deponent’s assertions were mere bald statements without any foundation. As stated in paragraph 42 of my judgment, the affidavit did not constitute evidence but rather unsubstantiated allegations. The ap plication was therefore dismissed
for the reasons outlined in my judgment (see paragraphs 13 to 46 – which should be
incorporated herein by reference). It follows that no bone fide defence was established.
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[12] Regarding the issue of prejudice, the applicant /defendant failed to establish any case of
prejudice suffered in its founding affidavit. In contrast, the respondent/plaintiff
established its case of prejudice (See: paragraph 23 of judgment).
[13] The applicant’s grounds for leave to appeal, as set out in paragraphs 4.4.3 and 4.4.4 regarding the exceptions to hearsay and the interest of justice, are unsubstantiated and lack detail s; they are therefore disregarded. I refer to paragraph 44 of my judgement
where I have dealt with the exceptions to the hearsay evidence rule.
[14] The applicant’s grounds for leave to appeal, raised in paragraphs 6 to 7, have been discussed above. The applicant has failed to meet the requirements for the relief sought
and the application was dismissed for the reasons set out in my judgment.
[15] In Ramakatsa v African National Congress [2012] ZASCA 31 at par 10 the Supreme Court
of Appeal summarised the test to be considered in an application for leave to appeal :
“ Turning the focus to the relevant provisions of the Superior Courts Act, leave to
appeal may only be granted where the judge concerned is of the opinion that the
appeal would have a reasonable prospect of success or there are compelling reasons
which exist why the appeal should be heard such as the interests of justice. This
Court in Caratco, concerning the provisions of section 17(1)(a)(ii) of the Superior
Courts Act pointed out that if the court is unpersuaded that there are prospects of
success, it must still enquire into whether there is a compelling reason to entertain the
appeal. Compelling reason would of course include an important question of law or a
discreet issue of public importance that will have an effect on future disputes.
However, this Court correctly added that but ‘here too the merits remain vitally
important and are often decisive’. I am mindful of the decisions at high court level
debating whether the use of the word ‘would’ as opposed to ‘could’ possibly means
that the thr eshold for granting the appeal has been raised. If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly, if there are some
other compelling reasons why the appeal should be heard, leave to appeal should be
granted. The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law that a court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In other words, the appellants in
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this matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there must
exist a reasonable chance of succeeding. A sound rational basis for the conclusion that
there are prospects of success must be shown to exist .”
[16] I have considered the applicant’s ground for leave to appeal along with its submissions in its
heads of argument, as well as the submissions of the respondent in its heads of argument.
Based thereon I found that:
[16.1] None of these grounds (as outlined by the Supreme Court of Appeal case) were
established by the applicant in this matter.
[16.2] There are no prospects of success that another court would find that the allegations
contained in the founding affidavit fall within the deponent’s personal knowledge and
that the applicant’s claims are not inadmissible hearsay evidence, which is
unsubstantiated by any supporting documentation/confirmatory affidavits.
[16.3] The matter is not based on “ an important question of law or a discreet issue of public
importance that will have an effect on future disputes .”
[16.4] Neither would the appeal lead to a just and prompt resolution of the real issues
between the parties.
[17] For reasons stated, I am not inclined to grant the application for leave to appeal.
THEREFORE, THE FOLLOWING ORDER IS MADE:
1. The application for leave to appeal is dismissed with costs, including costs of two counsel.
SIGNED AT PRETORIA ON THIS 1
st DAY OF APRIL 2025.