Phahlamohlaka AJ
Introduction
[1] This is an application for leave to appeal against my judgment and order dated
22 February 2022. It is common cause between the parties that the application was
brought out of time and the applicant puts the blame partly on the court because
according to the applicant the court delayed in providing reasons for its judgmen t and
order.
[2] The application for leave to appeal was argued together with the application for
condonation.
[3] The history of this matter is apposite. Ten months a fter I delivered judgment on
22 February 2022, the applicant launched an application for rescission which served
before my brother Mogotsi AJ. The application for rescission was dismissed with costs
and it was followed by the application for leave to appeal, which was also dismissed
with costs. After t he applicant could not succeed with the application for rescission,
the applicant belatedly launched the current application for leave to appeal my
judgment and order.
[4] Counsel for the respondent submitted that the applications by the applicant
were triggered when the applicant was supposed to pay the respondent/ plaintiff as per
the court order . After the applicant refused to pay the respondent/ plaintiff pursuant to
the court order, the respondent obtained a writ of execution together with a rescission
application which prompted the applicant to approach the court seeking an order on
urgent basis for the stay of the warrant of execution. The application for a stay of
warrant of execution as well as the rescission application were dismissed with costs.
Condonation Application
[5] Counsel for the applicant submitted that because the application for rescission
of judgment (which incorporated the application for leave to appeal) is dated 27
February 2023 and the reasons for judgment/order of 22 February 20 22 were
furnished on 11 July 2022, after the launch of the application for leave to appeal – it
can thus not be argued that the application for leave to appeal was “late”.
[6] It is extremely difficult to follow the submission by the applicant in this reg ard
because the law governing appeals is clear and unambiguous. Rule 49(1)(b) of the
Uniform Rules of Court provides as follows:
“When leave to appeal is required and it has not been requested at the time of the
judgement or order, application for such leave shall be made and the grounds therefor
shall be furnished within 15 days after the date of the order appea led 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, suc h application may be made within 15 days
after such later date: Provided further that the court may, upon good cause shown,
extend the aforementioned periods of 15 days.”
[7] An applicant who fails to file application for leave to appeal within the 15 days
prescribed by the rules must apply for condonation for the late filing and the court may
only grant the application for condonation on good cause shown. Condonation is
therefore not there for the mere taking. This was str essed by the Constitutional Court
in Grootboom v National Prosecuting Authority and Another1where the following was
said:
“It is now tri te that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it th e court ’s indulgence. It must show
sufficient cause. This requires a party to give a full explanation for the non -compliance
with the rules or court’s directions. Of great significance, the explanation must be
reasonable enough to excuse the default.”
[8] The applicant says the reasons for judgment w ere only furnished on 11 July
2023 but does not explain why the applicant failed to file the application for leave to
appeal within 15 days after receipt of the reasons. In my view, the applicant is just
1 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37 ; 2014 (2) SA 68 (CC) at
para 23 .
clutching at straws because the applicant launched a number of applications before
this application , and only woke up from the slumber after those applications were not
successful.
[9] The application for condonation has no merit and therefore stands to be
dismissed. However, in case I am wrong, I am inclined to consider th e application for
leave to appeal .
Leave to Appeal
[10] Section 17(1) of the Superior Courts Act 10 of 2013 (“the Act”) provides as
follows:
“(1) 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
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration .”
[11] Counsel for the applicant correctly conceded that the applicant cannot advance
any cogent argument against the quantum . On the merits , it is common cause between
the parties that the applicant failed to participate in the trial and th erefore did not
challenge the evidence presented by the respondent. The applicant now wants to
plead contribut ory negligence, again without relying on any evidence.
[12] It could not be denied by the applicant that the applicant previously lodged an
urgent application for a sta y of the Warrant of Execution and the Rescission
Application on the same grounds that they are bringing this application for leave to
appeal. This , in my view , is testimony that the applicant is abusing the court system,
and this mu st be frowned upon.
[13] I agree with counsel for the respondent that the applicant ’s grounds for appeal
are exactly the same as those of the rescission application which was dismissed by
my brother Mogotsi AJ.
[14] It appeared during submissions by coun sel that the applicant is only
complaining about the merits, without presenting any evidence to gainsay the
respondent’s evidence. Even on quantum , the applicant has not presented any
evidence to counter that of the respondent.
[15] Section 17(1)(a)(i ) enjoins the court to grant leave to appeal if the appeal would
have reasonable prospects of success. The meaning of reasonable prospects of
success was canvased in S v Smith2 where it was held that:
“What the test of reasonable prospects of success pos tulates is a dispassionate
decision, based on the fact and the law, that a court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In order to succeed, therefore, the
appellant must convince this court on proper ground s that he has prospects of success
on appeal and that those prospects are not remo te, but have a realistic chance of
succeeding. More is required to be established than that there is a mere possibility of
success, that the case is arguable on appeal or tha t the case cannot be categorised
as hopeless. There must, in other ways, be a sound , rational basis for the conclusion
that there are prospects of success on appeal.”
[16] In Cook v Morrisson and Another3 the Supreme Court of Appeal said the
following:
“The existence of reasonable prospects of success is a necessary but insufficient
precondition for the granting of special leave. Something more, by way of special
circumstances, is needed. These may include that the appeal raises a substantial point
of law ; or that the prospects of success are so strong that a refusal of leave would
result in a manifest denial of justice ; or that the matter is of very great importance to
the parties or to the public. This is not a closed list …”
Conclusion
[17] In my view , the applicant dismally failed to satisfy the principles laid down in
section 17(1) which were clarified by the Supreme Court of Appeal. In fact, the
2 S v Smith 2012 (1) SACR 567 (SCA) at para 7 .
3 Cook v Morrisson and Another 2019 (5) SA 51 (SCA) at para 8.
Instructed by: Adams & Adam s Attorneys
Judgment reserved on: 06 November 2024
Judgment delivered on: 5 February 2025