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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 658/2022
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
PRAIA ROCHA 122 INVESTMENTS (PTY) LTD
(Registration No: 2007/008499/07) First Appellant
GLEN GILMOUR MURDOCH
(Identity No: 7[...]) Second Appellant
and
THE LAND AND AGRICULTURAL BANK OF
SOUTH AFRICA Respondent
In re:
THE LAND AND AGRICULTURAL BANK OF
SOUTH AFRICA Applicant
and
PRAIA ROCHA 122 INVESTMENTS (PTY) LTD
(Registration No: 2007/008499/07) First Respondent
GLEN GILMOUR MURDOCH
(Identity No: 7[...]) Second Respondent
2
GIDEON JACOBUS KOEGELENBERG Third Respondent
Heard: 11 June 2025
Delivered: 20 June 2025
Summary: Application for leave to appeal brought out of time. Whether
condonation should be granted. The applicants had raised points of law on notice in
terms of Rule 6(5)(d)(iii). New grounds raised in seeking leave to appeal.
ORDER
1. The application to condone the late filing of the application for leave to
appeal is dismissed.
2. The application for leave to appeal is refused.
3. The applicants, jointly and severally, are ordered to pay the costs of the
respondent on the scale as between attorney and client including the costs of
counsel.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
Mamosebo J
[1] The applicants seek leave to appeal to the Supreme Court of Appeal (SCA),
alternatively, the Full Court of the Northern Cape Division against the order
and judgment I delivered on 26 May 2023 in which I granted the La nd and
Agricultural Bank of South Africa (the Land Bank) monetary judgment and
declared several immovable properties specially executable. The applicants
contend that the appeal would have a reasonable prospect of success.
[2] On 22 April 2024 I heard the application for leave to appeal launched by Mr
Gideon Jacobus Koegelenberg, who was cited in the main application as the
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third respondent. Praia Rocha 122 Investments (Pty) Ltd and Mr Glenn
Gilmour Murdock (who were t he first and second respondents in the main
application), filed a Notice to Abide the court’s decision. I refused Mr
Koegelenberg leave to appeal having found that there was neither a case
made out for prospects of success nor a compelling case for the appeal to be
heard. Mr Koegelenberg petitioned the SCA and leave was a lso refused.
According to the parties, Mr Koegelenberg’s application is pending before the
Constitutional Court and has not been allocated a date yet. I am also
informed that the applicants , in th e current application , have only filed a
Notice in terms of Rule 30 against Mr Koegele nberg’s application in the
Constitutional Court.
[3] The test whether to grant leave to appeal is trite. Leave should only be
granted in terms of s 17(1)(a)(i) and/or s 17(1)(a)(ii) 1 if the applicant has
satisfied the court that the appeal would have a reasonable prospect of
success or that there is some compelling reason why the appeal should be
heard2.
Condonation
[4] The applicants filed an application in terms of Rule 27 of the Uniform Rules
of Court urging this Court to condone their late filing. Having listed 21
grounds upon which they rely in their application for leave to appeal dated 06
November 2024 and filed on 07 November 2024 under the head: ‘Application
for leave to appeal in terms of Uniform Rule 49’, the applicants, below those
grounds and on the same document, proffered this explanation for their non-
compliance with the timeframes in these terms:
4.1 This application is brought following a change of legal
representation. The applicant[s] [were] previously represented by BJ
1 10 of 2013 Superior Courts Act
17 Leave to appeal
(1) Leave to appeal may only be given where the judge or judges are of the opinion that –
(a) (i) the appeal would have a reasonable prospect of success; or
(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.
2 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA); Mont Chevaux Trust v
Goosen 2014 JDR 2325 (LCC); Ramakatsa and Others v African National Congress and Another
(724/2019) [2021] ZASCA 31 (31 March 2021).
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Liebenberg Attorneys. However, due to reasons beyond applicants’
control, the applicants terminated the mandate of the previous legal
representatives during July 2024, and new attorneys, Engelbrecht
Attorneys, were appointed to represent the applicants;
4.2 The change in attorneys resulted in a delay in the preparation of the
necessary documentation, as the new legal representatives required
time to familiarise themselves with the case and fully understand the
history and complexities of the matter;
4.3 following the change of attorneys, the applicants and the new legal
representatives only became aware of certain critical facts that were
previously not made clear or adequately considered in the original
application. These facts are material to the applicant’s position and
are pivotal to the decision to seek leave to appeal;
4.4 The delay in filing the application was therefore not due to any
negligence or lack of diligence on the part of the applicant or their
new legal representatives but rather due to the necessity of
reviewing and reassessing the case considering newly discovered
facts;
4.5 The applicants are also awaiting a pending decision from the
Constitutional Court in a matter that has significant relevance to the
issues raised in this case. The outcome of this matter is expected to
have a bearing on the legal arguments in the current case and may
influence the outcome of the appeal , there is indeed a prima facie
[case] and as such the appeal has reasonable merits to be
successful;
4.6 In light of this, the applicants believed it prudent to await the decision
of the Constitutional Court before proceeding with the application for
leave to appeal, as it could materially affect the viability of the appeal
or the grounds upon which the applicant may seek leave;
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4.7 There will be no prejudice to the public interest should the
condonation be granted, the only thing would be the costs
associated with the auction;
4.8 The applicants are willing to tender reasonable costs for the day that
the auctioneers would incur for the auction and as such there will be
no prejudice towards them; and
4.9 The respondent will not be prejudiced as the balance of interest,
together with facts that became known to the applicant and his legal
team favour the applicant based on law.
[5] It is trite that condonation cannot be had for the mere asking. The
Constitutional Court (ConCourt) in Van Wyk v Unitas Hospital and Another
(Open Democratic Advice Centre as Amicus Curiae) 3 reaffirmed the principle
regarding condonation to this effect:
‘This court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is in the interests of justice
to grant condonation depends on the facts and circumstances of each case.
Factors that are relevant to this enquiry include but are not limited to the
nature of the relief sought, the extent and cause of the delay, the effect of the
delay on the administration of justice and other litigants, the reasonableness
of the explanation for the delay, the importance of the issue to be raised in
the intended appeal and the prospects of success.’
The Court went on to state:
‘An applicant for condonation must give a full explanation for the delay. In
addition, the explanation must cover the entire period of delay. And, what is
more, the explanation given must be reasonable.’
3 2008 (2) SA 472 (CC) paras 20 and 22
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[6] Since the applicants are seeking an indulgence from the court, the y bear the
onus of making out a case entitling them to the relief that they are seeking.
What is immediately striking is that no dates or periods are furnished
between one event to the next and what specifically was done during the
relevant periods. The requirements and principles set out in the Van Wyk
case (above) have been seriously flouted.
[7] Counsel for the applicants, Mr Van Staden, submitted that the applicants
were let down by their erstwhile attorneys, and it was only when they
became aware of the sale in execution of the properties that were specifically
declared executable by this Court on 26 May 2023, scheduled to take place
on 08 November 2024 that they sprang into action. That action pertained to
them filing an application for leave to appeal on 07 November 2024. A day
before the auction sale and more than sixteen months after the declaration.
[8] The instructive remarks by the appellate court in Saloojee and Another NNO
v Minister of Community Development4 bear repeating:
‘There is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the explanation tendered.
To hold otherwise might have a disastrous effect upon the observance of the
Rules of this Court. Considerations ad misericordiam should not be allowed
to become an invitation to laxity. In fact . this Court has lately been burdened
with an undue and increasing number of applications for condonation in
which the failure to comply with the Rules of this Court was due to neglect on
the part of the attorney. The attorney, after all, is the representative whom
the litigant has chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant should be
absolved from the normal consequences of such a relationship, no matter
what the circumstances of the failure are. (Cf. Hepworths Ltd v Thornloe and
what the circumstances of the failure are. (Cf. Hepworths Ltd v Thornloe and
Clarkson Ltd., 1922 T.P.D. 336; Kingsborough Town Council v Thirlwell and
4 1965 (2) SA 135 (A) at 141C -H
7
Another, 1957 (4) SA 533 (N)). A litigant, moreover, who knows, as the
applicants did, that the prescribed period has elapsed and that an application
for condonation is necessary, is not entitled to hand over the matter to his
attorney and then wash his hands of it. If, as here, the stage is reached
where it must become obvious also to a layman that there is a protracted
delay, he cannot sit passively by, without so much as directing any reminder
or enquiry to his attorney (cf. Regal v African Superslate (Pty.) Ltd ., supra at
p. 23 i.f.) and expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient, he cannot be heard
to claim that the insufficiency should be overlooked merely because he has
left the matter entirely in the hands of his attorney. If he relies upon the
ineptitude or remissness of his own attorney, he should at least explain that
none of it is to be imputed to himself. That has not been done in this case. In
these circumstances I would find it difficult to justify condonation unless there
are strong prospects of success ( Melane v Santam Insurance Co. Ltd ., 1962
(4) SA 531 (AD) at p. 532).’
[9] Rule 49(1)(b) stipulates that when leave was not requested at the time of the
judgment or order, application for such leave shall be made and the grounds
therefore shall be furnished within fifteen days after the date of the order
appealed against. Judgment and order was delivered on 26 May 2023. The
applicant’s new attorneys filed a Notice of intention to Oppose the
Constitutional Court matter on 21 August 2024 , but only filed th is application
for leave to appeal the judgment relating to the main application on the eve
of the sale in execution, 07 November 2024 , as stated . It can therefore not
be correct that they acted as soon as they came on record. It is apparent that
the applicants were thereby trying to frustrate the auction and giving the
respondent less than 24 hours to respond.
respondent less than 24 hours to respond.
[10] At para 4.1 the applicant makes this allegation: ‘ due to reasons beyond the
applicants’ control’ the applicant terminated the mandate of the previous
legal representatives.’ That statement is vague and inadequate and is not
supported by any content and context. It is further unclear how long it took
the attorneys of record to familiarise themselves with the papers after
8
receiving instructions in July 2024. It is not disputed that they were in the fray
when Koegelenberg filed his application at the SCA and at the ConCourt.
Their election to abide the decision of this court when Mr Koegelenberg
sought leave has consequences.
[11] It is significant that the applicants have in the main application not filed any
answering affidavit and only raised these three points of law in terms of Rule
6(5)(d)(iii): (a) service of the s 129 notice of the National Credit Act, 34 of
2005; (b) compliance with Rule 46(1) of the Uniform Rules of Court; and (c)
compliance with Rule 41A of the Uniform Rules of Court. These three issues
are adequately addressed in the main judgment, and I find it unnecessary to
regurgitate them here.
[12] The applicants cannot be allowed to raise completely new issues not only in
the application for leave but also in the written submissions. They rely on
these three grounds: (1) Error in law in the interpretation of the principle that
no one can transfer more rights to another than he himself has; (2) that the
court’s factual findings were not supported by evidence when it said the debt
is not in dispute; (3) error in law in the interpretation of Rule 46A(2) of the
Uniform Rules of Court read with s 26 of the Constitution without taking into
account the judgment in Bestbier and Others v Nedbank Ltd 2024 (4) SA 331
(CC). There was absolutely no evidence before this court pertaining to the
occupants of the immovable properties at the time of hearing the main
application. I must reiterate that t he applicants did not invoke Rule 46A(2)
before me but 46(1).
[13] The contention regarding whether or not the debt is in dispute was not only
not challenged when the matter was argued before cour t but the SCA has
laid this aspect to rest in Boxer Superstores Mthatha and Another v Mbenya5
when it said:
5 2007 (5) SA 450 (SCA) para 4
9
‘As yet there is no answering affidavit, and we must at this stage take the
allegations in the founding affidavit to be established facts.’
[14] The applicants have to surmount two hurdles : First the inordinate delay in
bringing this application and the lack of a reasonable explanation thereto
and, secondly, whether they have made out a case that the interests of
justice demand that the appeal be heard. They failed on both counts.
[15] In Corpclo 2290 CC t/a U -Care and Another v Registrar of Banks 6 the Court
said:
‘On appeal, the appellant’s counsel (who did not appear i n the court a quo)
seek, in their heads of argument, to make out a completely new case on
behalf of the appellants. This has three parts. First, they contend that the
court a quo failed in its duty under sections 8 and 39 of the Constitution to
interpret the Act in a way that respects, promotes and fulfils the rights in the
Bill of Rights. It did this, according to the argument, because it failed to take
account of sections 1, 22, 25 and 33 of the Constitution. Second, they
contend that even if the court a quo’s interpretation is correct, Notice 498 is
unconstitutional …Thus, the appellants raise three constitutional issues, the
proper interpretation of the Act, the constitutionality of the Notice and the
constitutionality of the power conferred on the Registrar to determine the
meaning of “the business of a bank”’.
The R egistrar’s counsel contends that because these issues were not
canvassed in the appellant’s answering affidavit the appellants are precluded
from advancing them on appeal.
The appellants’ approach ignores all the well -established rules of practice
governing motion proceedings and the raising of constitutional issues. It is
trite that in motion proceedings the affidavits comprise both the pleadings
6 [2012] JOL 29703 (SCA) paras 13, 15 and 16
10
and the evidence and that the parties’ contentions should appear clearly from
the affidavits so that the opposing party can deal with them.’
[16] Ms van der Merwe correctly asked the court to disregard the arguments
made on behalf of the applicants as they were not canvassed when the
matter was argued before the court. The applicants had made the election to
only argue the specified points of law. I find that there is no justifiable reason
to come to the aid of the applicants because they have been dilatory in the
conduct of their litigation.
[17] Arguing a completely new case when seeking leave ignores all the well -
established rules of practice governing motion proceedings and cannot be
countenanced by this court. The applicants have not made out a case of
prospects of success which warrant leave to be granted. Even if that were
the case, the applicants are non -suited based on the inordinate delay of 17
months without a reasonable explanation.
[18] On the question of costs. The applicants’ belated concern for the
farmworkers and their security of tenure is indeed self -serving as it was only
raised when seeking leave to appeal. If it were the case this aspect would
have been argued earlier in the main application. I find that their sole
purpose is to frustrate the execution of the already declared specially
executable property in favour of the bank.
[19] In the result, the following order is made:
1. The application to condone the late filing of the application for leave
to appeal is dismissed.
2. The application for leave to appeal is refused.
3. The applicants, jointly and severally, are ordered to pay the costs of
the respondent on the scale as between attorney and client including
the costs of counsel.
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M.C. MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
For the Applicant: Adv. HP Van Staden
Instructed by: Engelbrecht Attorneys
c/o Roux Welgemoed & Du Plooy Attorneys
For the Respondent: Adv. A.van der Merwe
Instructed by: Leahy Attorneys Inc
c/o Van de Wall Inc