IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
Case No.: 1697/2024
Date Heard: 18 July 2025
Date Delivered: 09 September 2025
In the matter between:
TOM CAMPHER MOTORS (PTY) LTD
t/a TOM CAMPHER VOLVO CARS, JOHANNESBURG Plaintiff
and
PAUL JACQUES ANDRE Defendant
JUDGMENT
RONAASEN AJ:
Introduction
General
[1] This judgment concerns an application for leave to appeal by the defendant against my
order of 22 October 2024 in terms of which I granted summary judgment against him.
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[2] Ironically, despite seeking leave to appeal in terms of a belated notice delivered on 27
February 2025, the defendant has employed every means possible to try and ensure
that his application for leave to appeal not be determined, raising various obstacles in
his endeavour to indefinitely delay the hearing of the application and a decision thereon.
His endeavours included ill-conceived applications for the postponement of the
application for leave to appeal and for my recusal, both of which I dismissed with costs.
The reasons for those dismissals are included in this judgment.
The order of 22 October 2024
[1] At the instance of the plaintiff, I granted an order for summary judgment (“the order”)
against the defendant, on 22 October 2024, as follows:
1. Summary judgment is granted against the defendant:
1.1 In respect of the BMW:
1.1.1 Payment in the sum of R830 000.00 together with interest at the rate of 11.75%
per annum a tempore morae from 22 June 2024 (being the date of service of
summons) until the date of payment.
1.1.2 In the event that the defendant fails to make payment referred to in paragraph
1.1.1 above within 5 (five) days of service on the defendant of the court order,
the Sheriff is authorised to attach the BMW wherever he may find it and deliver
it to the plaintiff who shall have the BMW valued by a sworn valuator and
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thereafter set off the valuation against the sum referred to in paragraph 1.1.1
above.
1.2 In respect of the Audi:
1.2.1 Payment in the sums of R140 000.00 and R1 501.45, totalling R141 501.45
together with interest at the rate of 11.75% per annum a tempore morae from
22 June 2024 (being the date of service of summons) until the date of payment.
1.2.2 In the event that the defendant fails to make the total payment referred to in
paragraph 1.2.1 above within 5 (five) days of service on the defendant of the
court order, the Sheriff is authorised to attach the Audi wherever he may find it
and deliver it to the plaintiff who shall have the Audi valued by a sworn valuator
and thereafter set off the valuation against the sum referred to in paragraph
1.2.1 above.
2. Costs of the action.
[2] I invited the parties to request reasons for my granting the order. These reasons were
provided on 17 December 2024, pursuant to such a request by the defendant.
Background
[3] I propose to set out the background facts in some detail as they demonstrate the
pattern of the defendant’s dilatory conduct and the disregard he has displayed
throughout the proceedings for rules of procedure and court orders.
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[4] On 10 May 2024 the plaintiff instituted action against the defendant. The relief sought
by the plaintiff foreshadowed the relief granted in terms of the order.
[5] The combined summons and accompanying particulars of claim were served on the
defendant on 24 June 2024.
[6] The defendant delivered a plea and claim in reconvention on 24 August 2024, only after
a notice of bar had been served on 6 August 2024.
[7] The delivery of the plea prompted an application for summary judgment by the plaintiff,
which was launched on 10 September 2024.
[8] The defendant failed to respond to the application for summary judgment, which was
enrolled for hearing, as an uno pposed application, on 8 October 2024. On that date
the application for summary judgment was postponed, at the cost of the defendant, to
22 October 2024. The defendant, furthermore, was directed by this court to deliver his
affidavit opposing summary judgment by 15 October 2024.
[9] The defendant did not deliver an affidavit opposing the application for summary
judgment as directed or at all, but rather, on 22 October 2024, the date on which the
application for summary judgment was enrolled for hearing, delivered a notice of
intention to amend his plea as well as a so-called “explanatory affidavit”. The affidavit
did not contain a request for a further postponement but, rather, unilaterally, sought to
direct how the application for summary judgment would unfold thereafter, in the
absence of the opposing affidavit which the defendant had failed to deliver, as ordered.
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Furthermore, the affidavit contained no explanation for the failure to deliver an
opposing affidavit.
[10] The defendant, on 22 October 2024, applied from the bar for a further postponement
of the matter, which I refused for the reasons furnished on 17 December 2024. The
defendant’s counsel declined to address me on the merits of the summary judgment .
After hearing argument from the plaintiff, I granted summary judgment in favour of the
plaintiff for the reasons provided on 17 December 2024.
[11] On 27 February 2025 the defendant delivered a notice of application for leave to appeal.
As the application was substantially out of time it was accompanied by an application
in terms of which the defendant sought condonation for its late delivery. It is the
applications for leave to appeal and for condonation with which this judgment is
primarily concerned.
[12] After 27 February 2025 the defendant simply did nothing to advance his application for
leave to appeal.
[13] The defendant’s application for condonation for the late delivery of his application for
leave to appeal indicated that the defendant had engaged with numerous counsel with
a view to advancing his application for leave to appeal. This created uncertainty as to
precisely which counsel would be representing him in the application for leave to appeal.
[14] It is not disputed that the plaintiff’s attorney repeatedly, during May 2025, by email,
sought confirmation from the defendant’s attorney as to which counsel would be
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representing the defendant in the application for leave to appeal, to enable counsel for
the parties to approach me to arrange a suitable date for the hearing of the application.
The defendant’s attorney did not respond to these emails.
[15] The defendant’s silence prompted the plaintiff’s attorney to instruct his counsel, Ms Ellis,
to approach me to fix the date for the hearing of the application for leave to appeal .
On 16 May 2025 she directed an email to me, to the following effect:
“I am instructed by Mr Nel (on behalf of the respondent) to approach you and request a date
for hearing of the applicant’s application for condonation as well as the leave to appeal.
Despite numerous requests, the applicant and/or his attorney has failed to provide us with
suitable dates, and they were informed that we are going to approach you to allocate a date.
Kindly provide us with a date for the hearing.”
[16] Later, on the same day, I telephoned Ms Ellis and advised her that I would hear the
applications on 6 June 2025 at 09:30. I requested her to advise the Registrar of this
Court of my determination to enable the Registrar to issue a notice of set down to the
parties. In determining the date as I did I acted in accordance with the relevant practice
direction in this Division (practice direction 10), whereby the parties were given the
required 10 court days written notice of the application. I shall revert more fully to the
provisions of th e practice direction later. I emphasise that I allocated the date
unilaterally, applying the practice direction , and not by agreement with Ms E llis, as
incorrectly suggested by the defendant in the further applications brought by him and
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to which I refer below. My foregoing description of events represented the sum of my
interaction with Ms Ellis, regarding the allocation of the 6 June 2025 date.
[17] In response to my allocation of a date for the hearing of the application for leave to
appeal, the defendant’s attorney advised the Registrar that his counsel would not be
available on the date allocated and requested that I allocate a different date. I asked
the Registrar to inform the parties that their counsel should approach me directly on
the question of the allocation of a date for the hearing.
[18] This resulted in Ms Ellis and Mr Mbenyane (who had appeared for the defendant on 22
October 2024 when he sought a second postponement of the summary judgment
application), representing the plaintiff and the defendant, respectively, seeing me on 3
June 2025. Mr Mbenyane indicated to me that he would not be available at all that
term (i.e. the second term of 2025) to argue the defendant’s applications and would
only be available at the end of July or in early August 2025 . Ms Ellis stated that the
plaintiff would abide with any date determined by me. I then allocated 18 June 2020
as the date on which I would hear the applications. In so doing I applied the provisions
of the practice direction of this Division regarding applications for leave to appeal, again
giving the parties at least 10 court days’ notice of the date. I considered it to be
unreasonable to agree to the dates put forward by Mr Mbenyane, as these dates were
in my view too far hence given that:
18.1. I had granted summary judgment on 22 October 2024;
18.2. reasons for my order of 22 October 2024 had been given on 17 December 2024;
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18.3. the defendant had belatedly given notice of his intention to seek leave to appeal
(subject to condonation being granted) on 27 February 2025 and had taken no
steps to advance his application after that;
18.4. my order for summary judgment concerned the return of movable property in
the form of motor vehicles which were susceptible to depreciation over time ;
and
18.5. given these factors I considered it reasonable that the application for leave to
appeal be finalised before the end of the second term, 2025.
[19] In the correspondence forming part of the papers before me it is suggested that when
I met with counsel to arrange a new date for the hearing of the applications for
condonation and leave to appeal I “postponed” the application to 18 June 2025. I did
not do so. I determined a fresh date in accordance with the applicable practice
direction, as requested by the defendant.
[20] On 12 June 2025 the defendant corresponded directly with me by email advising me
that he had lodged a complaint against me with the Legal Practice Council. No
particularity of the complaint was provided.
The events of 18 June 2025
[21] Prior to the commencement of the hearing of the applications for condonation and leave
to appeal I was approached in Chambers by Mr Bongani an advocate and member of
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the Eastern Cape Society of Advocates who advised me that he represented the
defendant in the applications. He asked that the hearing of the two applications stand
down to allow the defendant time to attest to founding affidavits in two applications,
namely an application for the postponement of the leave to appeal proceedings pending
the hearing of an application for my recusal from hearing the applications for
condonation and leave to appeal.
[22] I afforded the defendant the opportunity requested. Neither I nor the plaintiff had
received any prior notice of the defendant’s intention of bringing th e applications for
postponement and my recusal on the day on which the applications for condonation
and leave to appeal were to be heard.
[23] Mr Bongani had barely completed the first sentence of his address to me on the
application for postponement when he was rudely interrupted by an outburst from the
defendant, who indicated that he wished to terminate Mr Bongani’s mandate . The
defendant ignored my requests to act courteously, whereupon I adjourned proceedings
to allow the defendant and his counsel to resolve whatever issues had arisen between
them. After the adjournment , which included an opportunity to allow the parties to
pursue a mooted interim settlement, the defendant advised me that he had dismissed
his counsel.
[24] The defendant suggested that the proceedings would have to be pos tponed. I
responded that I would not accede to his request on the ground that he had dismissed
his counsel and was now unrepresented. I shall revert to this, below. I was advised by
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the defendant that he would represent himself in the applications for postponement
and my recusal.
[25] I proceeded to hear argument from the parties on the applications for postponement
of the applications for condonation and leave to appeal and for my recusal from hearing
the applications for condonation and leave to appeal.
[26] I dismissed the postponement and recusal applications with costs and thereafter heard
the applications for condonation and leave to appeal, in respect of which I reserved
judgment.
[27] In what follows I shall first give the reasons for my dismissal of the postponement and
recusal applications and thereafter provide my judgment on the applications for
condonation and leave to appeal.
Reasons for the dismissal of the applications for postponement and my recusal
General
[28] The facts in the two applications were inter-related and the applications were both
centrally premised on the defendant ’s alleged perception that I would be biased in
determining the defendant’s applications for condonation and leave to appeal because
he had laid a complaint against me with the Lega l Practice Council. Accordingly, my
reasons provided apply to both applications.
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Practice direction 10
[29] Practice direction 10 of the practice directions applicable in this Division provides as
follows:
“Applications for leave to appeal
(a) Applications for leave to appeal shall be heard on dates to be arranged by the legal
representatives of the parties in consultation with the judge who is to hear the application.
(b) Within 10 court days of the application for leave to appeal being filed, the legal
representatives of the parties are to approach the judge who is to hear the application in
order to attempt to arrange a mutually convenient date for the matter to be heard.
(c) In the event of the judge concerned not being approached within the aforementioned period
of 10 days or such longer period to which the judge may agree, or in the event of it not
being possible to determine a date convenient for all concerned within such period as a
judge may deem to be reasonable, the judge will determine the date and give the parties
at least 10 court days notice thereof.
(d) Once the date for the hearing of the application for leave to appeal has been determined ,
the registrar will issue a notice of set down stipulating the date and time of the hearing and
deliver a copy thereof to each party.”
Legal principles - postponements
[30] The legal principles governing the grant and refusal of postponements are well
established. The granting of an application for postponement is not a matter of right ,
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but is an indulgence granted by a court to a litigant in the exercise of a judicial
discretion. The litigant seeking a postponement is usually required to provide a
reasonable explanation for the need to postpone and the capability of an appropriate
costs order to nullify the opposing party’s prejudice or potential prejudice. Magistrate
Pangarker v Botha and Another 2015 (1) SA 503 (SCA) at [25].
[31] The Constitutional Court in Lekolwane and Another v Minister of Justice and
Constitutional Development 2007 (3) BCL R 280 (CC) at [17] set out the general
principles in respect of applications for postponement, as follows:
“The postponement of a matter set down for hearing on a particular date cannot be claimed as
a right. An applicant for a postponement seeks an indulgence from the court. A postponement
will not be granted unless this court is satisfied that it is in the interests of justice to do so. In
this respect the applicant must ordinarily show that there is good cause for the postponement.
Whether a postponement will be granted is therefore in the discretion of the court. In exercising
that discretion, this court takes into account a number of factors, including (but not limited to)
whether the application has been timeously made, whether the explanation given by the
applicant for postponement is full and satisfactory, whether the re is prejudice to any other
parties, whether the application is opposed and the broader public interest.”
[32] The following passage from Take and Save Trading CC v Standard Bank of SA Ltd 2004
(4) SA 1 (SCA) at [3] mutatis mutandis finds particular application in this matter:
“One of the oldest tricks in the book is the practice of some legal practitioners, whenever the
shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage),
or of clients to terminate the mandate (more often than not at the suggestion of the
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practitioner) to force the court to grant a postponement because the part y is then
unrepresented. Judicial officers have a duty to the court system, the ir colleagues, the public
and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a
postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does
not, contrary to popular belief, entitle a party to a postponement as of right.”
[33] It is against this background that I had to consider the defendant’s application for a
postponement.
Legal principles – recusal
[34] In applying the test for recusal our courts have recognised the presumption that judicial
officers are impartial in adjudicating disputes. There is a recognition that legal training
and experience prepare judges for the often-difficult task of fairly determining “where
the truth may lie in a welter of contradictory evidence”. See President of the Republic
of South Africa and Others v South African Rugby Football Union and Others 1999 (4)
SA 147 (CC ) at [40] and also at [48] where the test for recusal was stated to be as
follows:
“It follows from the foregoing that the correct approach to this application for the recusal of
members of this Court is objective and the onus of establishing it rests upon the applicant. The
question is whether a reasonable, objective and informed person would on the correct facts
reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the evidence and the submissions
of counsel. The reasonableness of the apprehension must be assessed in the light of the oath
of office taken by the Judges to administer justice without fear or favour, and their ability to
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carry out that oath by reason of the training and experience. It must be assumed that they
can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take
into account the fact that they have a duty to sit in any case in wh ich they are not obliged to
recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a
fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself
or himself if there are reasonable grounds on the part of a litigant for apprehending that the
judicial officer, for whatever reason, was not or will not be impartial.”
[35] The Constitutional Court, with reference to judgments of that court, in Bernert v ABSA
Bank Ltd 2011 (3) SA 92 (CC) , at [ 34], emphasised the double requirement of
reasonableness that the application of the test for bias imports, namely that the person
who apprehends bias and the apprehension itself must be reasonable . “Mere
apprehension on the part of a litigant that the judge will be biased - even a strongly
and honestly felt anxiety - is not enough”. It, then, went on to hold, at [35] that:
“The presumption of impartiality and the double requirement of reasonableness underscore the
formidable nature of the burden resting upon the litigant who alleges bias or its apprehension.
The idea is not to permit a disgruntled litigant to successfully complain of bias simply because
the judicial officer has ruled against him or her. Nor should litigants be encouraged to believe
that, by seeking the disqualification of a judicial officer, they will have their case heard by
another judicial officer who is likely to decide the case in their favour. Judicial officers have a
duty to sit in all cases in which they are not disqualified from sitting. This flows from a duty to
exercise their judicial functions. As has been rightly observed, ‘judges do not choose their
exercise their judicial functions. As has been rightly observed, ‘judges do not choose their
cases; and litigants do not choose their judges’. An application for recusal should not prevail,
unless it is based on substantial grounds for contending a reasonable apprehension of bias.”
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[36] The authors Herbstein and Van Winsen , The Civil Practice of the Superior Courts of
South Africa, sixth edition, volume 2 in an analysis and useful summary of the case law
relating to recusal, at 33-36/37, describe a current alarming trend, as follows:
“More and more recusal applications are being brought as a tactical device or simply because
the litigant does not like the outcome of an interim order made during the course of the trial.
The seeming alacrity with which legal practitioners bring or threaten to bring recusal
applications is cause for concern. The recusal of a presiding officer, whether it be a magistrate
or a judge, should not be standard equipment in a litigant’s arsenal, but should be exercised
for its true intended objective, which is to secure a fair trial in the inter ests of justice in order
to maintain both the integrity of the courts and the position they ought to hold in the minds of
the people whom they serve. Judges are expected to be stoic and thick-skinned. What is
expected of a judge in presiding over a matter is clear, as is the right of a litigant to raise the
impropriety of a judge’s conduct and without fear, to seek his or her recusal. The re can also
be no doubt that the right to seek a recusal is imbedded in the right to a fair trial and should
not be st ifled, even indirectly. Where a judge’s character is seriously impugned and clearly
defamatory statements are made at a personal level in respect of an alleged extra-curial event
or incident legal representatives should bring a more analytical appraisal to be ar, particularly
where the judge’s recusal was not pursued expeditiously. Where a litigant brings an application
for recusal in a transparent and dishonest strategy to obtain a postponement, the application
will fall foul of the principles governing recusal and will be dismissed.”
[37] These legal principles informed my decision to dismiss the application for my recusal
with costs.
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Application of legal principles
[38] The defendant’s application to postpone his applications for condonation and leave to
appeal was premised on his application for my recusal. In paragraph 36 of his
application for a postponement he said the following:
“If the postponement is not granted I submit that I will not have a fair hearing due to the fact
that I hold a reasonable apprehension that Honourable Acting Judge Ronaasen will not bring
an impartial mind to bear on the adjudication of this case due to the fact that I have lodged a
complaint against him at the LPC, which I am entitled to do so.”
[39] No facts are provided to support the defendant’s “reasonable apprehension”.
[40] The application for my recusal, in turn, appears to be premised on the following:
40.1. my interaction with Ms Ellis when I initially allocated the date for the hearing of
the applications for condonation and leave to appeal; and
40.2. the fact that the defendant, pursuant to my interaction with Ms Ellis submitted
a complaint against me to the Legal Practice Council , as a result of which I
would no longer be able to be impartial when presiding over his applications for
condonation and leave to appeal.
[41] The premise of the application for recusal is set out as follows in the defendant’s
founding affidavit in that application:
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“12. The fact that the Honourable Judge entertained the email by Advocate Leanne
Ellis when my legal representative where not included has caused me to think
that the Honourable Judge is bias and will be bias in dealing with the application
for leave to appeal (hereinafter referred to as the “main application”) going
forward.
13. Following the interaction between the Honourable Judge and Advocate Leanne
Ellis I lodged a formal complaint against the Honourable Judge at the Legal
Practice Council of the Eastern cape. A copy of the formal complaint is attached
hereto marked (“Annexure 3”).
14. In the formal complaint I am the complainant, and the Honourable Judge is
the respondent meaning we are opponents. It must be noted that we are
opponents on issues that emanate from the main application which the
Honourable Judge is currently presiding over.
15. This has further created a reasonable apprehension in me that the Honourable
Judge will not be able to be impartial when presiding further over the main
application.
16. I submit that this parallel relationship in which the Honourable Judge is now
the subject of a professional complaint made by me makes it inappropriate for
the Honourable Judge to continue presiding over the main application.
17. I respectfully submit that the circumstances set out above give rise to a
reasonable apprehension of bias, such that the Honourable Judge ought not to
continue presiding over this case.”
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[42] As stated, my interaction with Ms Ellis regarding my initial allocation of a date for the
hearing of the applications for condonation and leave to appeal was confined to a
response by telephone to her email requesting that I fix a date, which date I fixed with
reference to the applicable practice direction and without any reference to Ms Ellis. The
defendant’s averment in the founding affidavit of his application for postponement
that I had “agreed” the initial date with Ms Ellis is thus entirely without foundation.
[43] After allocating the initial date I acceded to the defendant’s request to allocate a
different date. I allocated the later date in the presence of counsel for the parties, after
discussion with them. This was on 3 June 2025. Again, the later date was allocated in
accordance with the applicable practice direction . I explained to counsel why I
considered it to be unreasonable, in the context of the circumstances envisaged in the
practice direction, to enrol the matter only in the third term when the defen dant’s
counsel attending the meeting would be available for the first time. In determining the
date I bore in mind that the counsel attending the meeting had not been briefed on the
merits of the summary judgment application and had only been briefed to seek a
postponement on the date on which the application was heard.
[44] In his application for my recusal the defendant has not set out any factual basis from
which could lead to a reasonable conclusion , arising from the events which led to my
initial allocation of a date for the hearing of the applications for condonation and leave
to appeal, of an apprehension of bias on my part.
[45] No doubt, to bolster his allegations regarding my bias, and to add an additional arrow
to his quiver, the defendant lodged a complaint against me to the Legal Practice Council.
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This was done to create a perception that I was now involved, litigious ly, in a dispute
with the defendant and could therefore no longer act independently and without bias.
Any argument in that regard is fundamentally flawed as the Legal Practice Counsel has
no jurisdiction over the conduct of judges.
[46] My view that the defendant was not acting reasonably and could not have had a
reasonable apprehension of bias on my part is enhanced by the following:
46.1. since launching his belated application for leave to appeal he made no attempt
to set his applications for condonation and leave to appeal down, for hearing in
the manner required by local practice directive 10, to which I have referred
above;
46.2. the defendant ignored at least three written requests from the plaintiff’s
attorney, in compliance with the practice directive, to cooperate in arranging a
date for the hearing of the leave to appeal application;
46.3. the defendant’s notifying me directly, by email, of the fact that he had lodged
a complaint against me with the Legal Practice Council. No doubt this was done
in an attempt to intimidate me;
46.4. after I had initially fixed the date for hearing the applications for condonation
and leave to appeal, I acceded to the defendant’s request to revisit my
determination of the date. On 3 June 2025 I allocated a new date in terms of
the practice direction in the presence of the defendant’s counsel. Surely this
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would have served to dispel any apprehension of bias on my part. Significantly,
no mention of these events is made in the application for my recusal or in the
defendant’s complaint to the Legal Practice Counc il, which is annexed to the
application, all of which is illustrative of the defendant’s dishonesty;
46.5. the applications for postponement and for my recusal were only brought on the
morning of the day on which the applications for condonation and leave to
appeal were set to proceed; and
46.6. the defendant’s abrupt dismissal of his counsel was a further stratagem in his
endeavour to secure a postponement.
[47] Paragraph [33] of the judgment in Pangarker (supra) is apposite and applies equally to
the conduct of the defendant:
“Fourth, the criticism of the magistrate is unjustified. There is no doubt that AB engineered an
application for a postponement under the guise of a recusal application. This application was
a transparent and dishonest strategy to obtain a postponement. The decision of this court in
Take and Save referred to in [26] above is instructive. He fell foul of the principles espoused
in that case. It is incomprehensible how it could be said that the magistrate had committed a
gross irregularity under these circumstances.”
[48] The defendant, for reasons known only to him, has made every attempt to avoid
following the practice di rection to get his applications for condonation and leave to
appeal heard. To this end his application for my recusal and the dismissal of his counsel
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mid-argument were part of a transparent and dishonest strategy to obtain a
postponement.
[49] The defendant’s Johannesburg attorneys have remained on record throughout the
proceedings. They prepared the applications for postponement and recusal for the
applicant. These applications were poorly and belatedly prepared, were based on
insufficient and incorrect facts and failed to disclose relevant facts . The recusal
application makes no reference to my agreement to revisit the allocation of a heari ng
date and my meeting, to that end, with the parties’ counsel on 3 June 2025 at which I
allocated a new hearing date. The complaint to the Legal Practice Council was lodged
on 12 June 2025. It contains no reference to the meeting of 3 June 2025.
[50] It is apparent that the applications for postponement and recusal were not preceded by
any analytical appraisal by the defendant’s attorneys particularly in circumstances
where the applications were very belatedly brought, making them complicit in the
defendant’s strategy to secure a postponement under the guise of an application for
my recusal. See Bennett and Another v The State 2021 (2) SA 439 (GJ) at [113]-[116].
[51] For these reasons I dismissed the applications for postponement and my recusal, with
costs.
The conduct of Ms Ellis
[52] Ms Ellis has been much maligned by the defendant in correspondence which forms part
of the record of proceedings, unjustifiedly so. I have set out above the limited extent
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of my interaction with Ms Ellis regarding my determination of a date for the hearing of
the applications for condonation and leave to appeal. There was nothing inappropriate
in her approach to me directly in the absence of a response from the defendant’s
attorney. In no way did Ms Ellis act improperly in her limited engagements with me
regarding the allocation of a date. During the proceedings on 18 June 2025 Ms Ellis
had to endure further verbal attacks from the defendant . Throughout Ms Ellis acted
decorously in the manner expected of an advocate and an officer of this court
The applications for condonation and leave to appeal
[53] My judgment on the application for condonation will be informed by the defendant’s
prospects of success in the application for leave to appeal. In view of the decision I
have reached on the merits of the application for leave to appeal I consider it
unnecessary to dwell on his lengthy and wholly unconvincing explanation for his delay
in bringing the application for leave to appeal.
[54] Uniform rule 32(3) allows a defendant to resist summary judgment in three possible
ways, namely by providing security to the plaintiff to the satisfaction of the court for
any judgment including costs which may be given; or to satisfy the court by affidavit or
by way of oral evidence (with the leave of the court) that the defendant has a bona fide
defence to the plaintiff’s claims.
[55] When the application for summary judgment came before this court on 8 October 2024
the defendant had indicated that he wished to establish his defence by way of affidavit
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and for that purpose was granted a postponement and directed to file his opposing
affidavit by 15 October 2024.
[56] On 22 October 2024, the date on which I gave the order for summary judgment, the
defendant did not avail himself of the other options afforded him by rule 32(3). He had
on that date delivered a notice signifying his intention to amend his plea. When I
queried as to why he had not delivered the affidavit he was ordered to deliver by 15
October 2024, which would be in harmony with the proposed amendment of his plea,
he sought a further postponement to file such an affidavit. I refused the request for a
further postponement and granted summary judgment in favour of the plaintiff , in the
terms set out above, for the reasons provided by me.
[57] In paragraph 3 of his notice of application for leave to appeal the defendant states as
follows:
“Having delivered the notice of intention to amend and the explanatory affidavit, the applicant
made application for postponement of the application for summary judgment in order to allow
him to file an affidavit in opposition to the application for summary judgment. The affidavit
opposing summary judgment would be in accordance with the defences raised, and referred
to, in the notice of intention to amend the applicant’s plea.”
[58] The defendant, therefore, accepts that I correctly applied the provisions of rule 32 by
finding that the filing of a notice indicating an intention to amend his plea was in itself
not sufficient to resist summary judgment in the absence of an affidavit which was in
harmony with the proposed amendment.
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[59] The defendant’s attack on my judgment is thus directed at my refusal to grant him a
postponement to file an affidavit resisting summary judgment, which request I refused
for the reasons furnished . In essence, the defendant had been directed to file his
affidavit resisting summary judgment by 15 October 2024. By the time of the hearing
before me, on 22 October 2024, he still had not done so and provided no explanation
for his failure to do so. In a contemporaneously filed “explanatory affidavit” he rather
sought to dictate how the further process in respect of the application for summary
judgment should unfold in the light of his notice of amendment. In the circumstances
I exercised my discretion to refuse him a further postponement and granted summary
judgment in favour of the plaintiff.
[60] The discretion to grant or refuse a postponement referred to in the passage cited in
paragraph [31] above is a judicial discretion . See also Pangarker (supra) at [25]. In
exercising my discretion and refusing the postponement I took into account the fact
that the application for postponement had not been timeously made and had only been
brought from the bar on the morning of the hearing of the application for summary
judgment. I also took into account the further factors set out in paragraph [11] of the
reasons for my granting summary judgment in favour of the plaintiff.
[61] There is no suggestion in the defendant’s notice of application for leave to appeal that
I failed to exercise my discretion judiciously when I refused his application for
postponement. Nor are any fact s advanced to demonstrate that I did not act
judiciously.
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[62] Accordingly, an appeal would not have reasonable prospects of success. Thus, I make
the follow ing order:
1. The defendants application for condonation for the failure to deliver his application
for leave to appeal timeously is dismissed with costs.
2. The defendants application for leave to appeal against the order of 22 October 2024
in terms of which summary judgment was granted against him in favour of the
plaintiff is dismissed with costs.
0 H RONAASEN
ACTING JUDGE OF THE HIGH COURT
This judgment was circulated to the parties electronically on Tuesday, 09 September 2025
at 14:30 and is deemed to have been handed down on Tuesday, 09 September 2025 at
14:30.
Appearances: Plaintiff: Ms L Ellis
Instructed by Gerrie Nel Inc, c/o Joubert Galpin & Searl, 173
Cape Road , Mill Part, Gqeberha
Email: gerrie@gerrienel i nc.co.za
I ucy@gerrienel i nc.co.za
joyl@jgs.co.za
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Defendant: In person
Represented by: Ian Levitt Attorneys, c/o James Phillpson
Attorneys, 115 Cape Road, Mount Croix, Gqeberha
Email: janyde@ianlevitt.co.za
thomas@ianlevitt.co.za
james@jpattorneys.co.za