IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NUMBER.: 1890/2021
In the matter between:
PAUL LOUIS LOUW Applicant
And
ALEXANDER FREDERICK CARTER First Respondent
OMBUD FOR FINANCIAL SERVICES PROVIDERS Second Respondent
JOHANNES THEODORUS OTTO Third Respondent
DENTON DEAN HENNING Fourth Respondent
PAUL R JOHNSON Fifth Respondent
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
Beshe J
[1] Section 17 of the Superior Courts Act 1 provides that: (1) Leave to appeal
may only be given when the judge or judges concerned are of the opinion that
the appeal would have a reasonable prospect of success or there is some
compelling reason why the appeal should be heard.
1 Act 10 of 2013.
[2] Following a judg ment wherein I dismissed an application for a review
pursuant to the provisions of the Promotion of Administrative Justice Act 2,
(PAJA) of second respondent’s determination, applicant is seeking leave to
appeal the said judgment.
[3] In my judgment I held that:
The applicant did not exhaust the internal remedies at his disposal before
lodging the review application;
He failed to lodge the review application within the period stipulated in Section
7 (1) of PAJA and or without unreasonable delay.
Further that he did not make out a case for condonation or extension of the
period referred to in Section 7 (1) above. Furthermore, that he did not make out
a case or shown exceptional circumstances warranting his exemption from the
obligation to exhau st any internal remedy should this be in the interest of
justice.
[4] The application for leave to appeal is mainly premised on the merits of
the review application and not so much on the requirement of PAJA. The reason
for that is not difficult to find. This is on the basis, so it is contended that the
applicant was not seeking condonation for the late filing of the review
application as well as an exemption from exhausting internal remedies.
Applicant having stated that he was doing only in so far as it was necessary to
do so, being of the view that he did not need any of these prayers. And that
therefore in this regard the court made a “factually incorrect statement”. My
judgment is also impugned on the basis that I failed to consider the argument
advanced in respect of the costs reserved previously.
2 Act 3 of 2000.
[5] Applicant’s assertion that he did not require condonation for the late
filing of the review application is seemingly based on the contention that he
only became aware of the second respondent’s decision on 5 July 2021. But, as
indicated in my judgment, this cannot be accurate. As far back as October 2016,
applicant had signalled his intention to appeal the Ombud’s decision. Clearly
therefore, the review application was launched far beyond the 180 days’ pe riod
allowed by PAJA. Four years after the proceedings sought to be set aside were
concluded.
[6] For reasons stated in my judgment, applicant failed to make out a case for
condonation and or exemption from exhausting internal remedies as envisaged
in PAJA. I am of the view that there are no reasonable prospects of success on
appeal. After an objective analysis of the dispute of fact, I was of the view and
still is of the view that the applicant did not produce acceptable evidence to
show that he exhausted internal remedies available to him.
[7] Regarding the writ of execution, I was not persuaded that it was “stale” as
alleged by the applicant. Rule 66 states that writs of execution of a judgment
once issued, remain in force and may, subject to the provisions of Section 11 (ii)
(a) of the Prescription Act3 be executed at any time without being reviewed until
judgment has been satisfied in full. Section 11 (ii) (a) provides that the period of
subscription of any judgment debt shall be thirty years.
[8] As regards my award of costs in respect of the reserved costs, I exercised
my discretion in the manner I did after considering the reasons for the matter
being postponed on those occasions. As I understand the wasted costs to a large
extent were occasioned by the raising of objections / points in limine to
applicant’s papers. These resulted in applicant amending his papers to address
3 Act 68 of 1968.
the points in limine raised. As far as I can gather, Part A of the application was
not opposed.
[9] For all the reasons stated hereinabove, I am not persuaded that the appeal
has a reasonable prospect of success.
[10] Accordingly, the application for leave to appeal is dismissed with costs.
_______________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant : Adv: E. Crouse SC
Instructed by : HOWARD COLLEN INC.
11A Shirley Street
Newton Park
GQEBERHA
Ref: (H Collen)
Tel.: 041 – 365 3700
For the 1st Respondent : Adv: L. Gagiano
Instructed by : RUSHMERE NOACH INC.
5 Ascot Office Park
Conyngham Road
Greenacres
GQEBERHA
Ref: Mrs S L Lubbe-Roberts/LH/MAT39113
Tel.: 041 – 399 6735
For the 2nd Respondent : Adv: X. Hilita
Instructed by : MAMATELA ATTORNEYS INC.
C/o VAN HEERDEN ATTORNEYS INC
147 Cape Road
Glendinningvale
GQEBERHA
Ref: LVH/wb/M158
Tel.: 041 – 007 0923
Date Heard : 7 March 2025
Date Reserved : 7 March 2025
Date Delivered : 7 October 2025