IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
VOLKER UDO ZAHN
and
CAPSTONE 1471 CC
In re matter between:
JUDGMENT
ENVER MOHAMED MOTALA
CAPSTONE 1471 CC
and
VOLKER UDO ZAHN
Not Reportable
Case no: 3590/22
APPLICANT
RESPONDENT
FIRST PLAINTIFF
SECOND PLAINTIFF
DEFENDANT
Neutral citation: Volker Udo Zahn v Capstone 1471 CC (Case no 3590/22)
[2025] ZA WCHC (3 December 2025)
Coram: MTHIMUNYE AJ
Heard: 14 August 2025
Delivered: 8 December 2025
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Summary: Application for leave to appeal against whole judgment and order
in which the court dismissed the respondent's (second plaintiff in the main
action) claim in the main action due to its failure to file their answering affidavit
and provide security to the applicant (defendant in the main application) in the
amount ofR500 000.00 as ordered by the court on 26 September 2024.
ORDER
1. The application for leave to appeal is dismissed with costs.
JUDGMENT
Mthimunye AJ:
Introduction
[I] This is an application for leave to appeal by the respondent to the Full
Bench of this court, alternatively to the Supreme Court of Appeal, against the
whole judgment/ order handed down by this court on 25 July 2025.
[2] For ease of reference, I shall simply throughout this judgment refer to the
parties as cited as in the main application, thus the applicant (second plaintiff) in
the leave to appeal will be referred to as the respondent and the defendant as the
applicant.
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Litigation History
[3] I will first set out the brief history of the litigation which forms the basis of
this leave to appeal. The main application was to dismiss the respondent's (second
plaintiff in the main action) claim due to its failure to provide security to the
applicant (defendant in the main application) in the amount of R500 000.00 as
ordered by the court on 26 September 2024.
[ 4] On 17 March 2025, the respondent delivered a notice of intention to oppose
the application by applicant to dismiss their claim. The respondent failed to
deliver their answering affidavit timeously resulting in the applicant bringing a
chamberbook application in terms of Replacement Practice Directive PN37(20)
for an order compelling the respondent to deliver their answering affidavit.
[5] On 13 June 2025, Mantame J granted the chamberbook applica~ion,
ordering the respondent to deliver its answering affidavit within 5 days of service,
failing which the applicant shall. be entitled to enroll the application to dismiss
the respondent's claim on the unopposed roll. The order was duly served on the
respondent on 23 June 2025. Respondent acknowledged service on 30 June 2025.
[ 6] The respondent failed to deliver its answering affidavit within the specified
time. Consequently, the applicant enrolled the matter on the unopposed roll in
accordance with Replacement Practice Directive PN 37(20) and in terms of
paragraph 3 of court order dated 26 September 2024.
[7] On 30 June 2025 the respondent's legal representative sought an
indulgence from the applicant to deliver its answering affidavit by 11 July 2025
as their client was hospitalised. This request was rejected by the applicant, due to
the dilatory conduct of the respondent in this matter. Despite the notice of set
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down being served on the respondent on 3 July 2025, no further communica tion
had been received by the applicant from the respondent by 22 July 2025.
[8] On 25 July 2025, matter was enrolled on the unopposed roll as per court
order dated 26 September 2024. During the proceedings, the respondent filed and
served its answering affidavit together with an application for condonation of the
late filing of its answering affidavit on the applicant as well as the court. As
condonation application was brought while the court was dealing with the matter
it is apparent that it was brought on an urgent basis. On perusing the condonation
application, the court observed that there was no prayer in the respondent's papers
for condonation of the non-compliance with the forms and timeline provided by
Rule 6 of the Uniform Rules of Court. There were also no exceptional
circumstances set out in the condonation application why it had to be considered
on an urgent basis. Under the circumstances the court in exercising its judicial
discretion proceeded with the matter which wa s enrolled on the motion court roll
as unopposed in accordance with the Practice Directives and court order granted
by Mantame J on 26 September 2024.
Respondent/Second Plaintifrs Grounds
[9] The respondent's principal grounds of appeal are that this court erred in
treating the application to dismiss their claim as opposed notwithstanding the fact
that they had filed an answering affidavit, albeit outside the prescribed time
period. Further, that the court misdirected itself in finding that it was in the
interest of justice to proceed with the matter on an unopposed basis, without
affording the respondent an opportunity to present its application for condonation
for the late filing of its answering affidavit. Additionally, that the court failed to
properly consider, or at all, the respondent's explanation for the delay in filing its
answering affidavit and the circumstances giving rise thereto.
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Applicant / Defendant's Grounds of Opposition
[ 1 OJ The applicant opposes the application, arguing that the respondent failed
file their answering affidavit timeously, after a chamber book application was
granted. Further that the respondents filed their answering affidavit outside the
timelines provided for by the rules of court, despite serving a notice to oppose in
March 2025. Consequently, the applicant was forced to bring a chamber book
application compelling the respondent to deliver their answering affidavit and
still the applicant failed to do until the very last minute. The condonation for this
late filing of the answering affidavit was brought on an urgent basis while the
court was already in session.
[ 11] It was further argued that the order of court granted in terms of the chamber
book application clearly stated that in the event the plaintiff /respondent failed to
file his answering affidavit within a specific time period, the defendant/ applicant
may enroll the matter as unopposed on the third division roll, which is what had
happened in this matter. Furthermore, that the proper procedure would have been
for the respondent to bring an application having the existing court order set aside.
[ 12] It was further argued that even if the respondent were to be granted
condonation for the late filing of its application, the order granted on 26
September 2024 specifically states that the respondent must provide security for
the costs of the applicant in the sum ofRSOO 000.00 within 10 days of the order,
alternatively in a form acceptable to the applicant. The respondent failed to
comply with the court order in providing a bond of security, as the security
provided by the respondent is labelled as performance security. It states further
that the parties/ beneficiaries entered into an agreement in terms of security of
costs.
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[ 13] It was further argued that it should be noted by this court that the
condonation application which the respondent wanted the court to consider was
only served on the instructing attorney of counsel, who was sitting at the far back
while counsel was already busy addressing the court. Furthermore, that no
reasonable prospects of success exists that another court would find differently,
as there is prospect of the eventual appeal. Finally, that the argument raised by
respondent, that the amount that was released was to be held in trust pending the
finalisation of the claim was not a ground raised by the applicant in his notice for
leave to appeal.
The test for leave to appeal
[14] Section 17O)(a) of the Superior Courts Act 10 of2013 provides:
"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".
[15] In Ramakatsa and Others v African National Congress and Others [2012]
ZACC 31, the Constitutional Court held that a higher threshold must be met,
namely that the applicant must show that there is a realistic, reasonable prospect
of success, and not merely an arguable case.
[ 16] The Constitutional Court in Zuma v Secretary of the Judicial Commission
of Inquiry into State Capture 2021 (11) BCLR 1263 (CC) at para 53-54, and the
Supreme Court of Appeal in Mkhitha v MEC for Health, Eastern Cape [2016]
JOL 36940 (SCA), confirmed that leave should not be granted unless there exists
a real, not remote, prospect that another court would arrive at a different
conclusion.
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Evaluation
[ 1 7] Mantame J has specifically ordered that the application to dismiss the
respondents claim should proceed on an unopposed basis if the respondent fail to
comply with her order of court. The respondent not only failed to file its
answering affidavit within the 5 days as ordered by Mantame J on 26 September
2024 but also filed a condonation application on the applicant's attorney urgently,
who was sitting at the back of the court. During this time counsel for the applicant
was busy addressing the court. The applicant was given no opportunity to oppose
the application. In perusing the application for condonation, it was apparent that
the respondent had failed to set out what the urgency was or shown good cause
why this court had to condone its non-compliance with the Rules of Court.
[18] The attack that the court did not consider the condonation application, is
incorrect. The court did consider it even though the court did not pronounce on
it. Furthermore, in exercising its judicial discretion the court took into
consideration the time the condonation application was served on the applicant
and handed to the court, which was after 10 am while counsel for the respondent
was busy addressing the court. If the court had to allow the condonation to which
the applicant clearly objected it would have been prejudicial to both parties and
not in the interest of justice. Further on perusal of the condonation application,
the court noted that no urgency or good cause was set out by the respondent in
their application as to why the court could not deal with the matter before court
on the unopposed roll. The respondent had ample time to bring the application
before court prior to the matter being heard on 25 July 2025 as they had been
served with the court order by 3 July 2025 already. They decided to wait till the
last moment to ambush not only the court but the applicant, which is clearly an
ambush of the court proceedings which is unfair nor in the interest of justice.
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[ 19] The dilatory conduct of the respondent for nearly 2 years resulted in the
applicant suffering prejudice. Furthermore, the respondent even after being
compelled by a court order to file their answering affidavit within 5 days of being
served with the court order still flagrantly continued with their delaying tactics.
This is clearly illustrated by the fact that by 22 July 2025, nearly 10 months after
the Mantame J order was granted the respondents still had not filed their
answering affidavit.
[20] The court demonstrating its displeasure against the respondent's dilatory
actions in finalising this matter and its flagrant disregard of the rules of law
proceeded with the matter on the unopposed roll as per order granted by Mantame
J and the Replacement Practice Directive PN 37(20).
[21] Finally, I am inclined to agree with the applicant that the argument raised
by respondent, that the amount that was released was to be held in trust pending
the finalisation of the claim was not a ground raised by the applicant in its notice
for leave to appeal as an afterthought and need no further consideration.
[22] Having considered the applicant's submissions, including that of the
respondent, I am not persuaded that there are reasonable prospects that another
court would come to a different conclusion. Nor has the applicant advanced any
other compelling reasons, such as conflicting authority or public interest, to
justify a hearing by the full bench of this court or before the Supreme Court of
Appeal. In the circumstances, I am not satisfied that there are reasonable
prospects of success on appeal.
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Costs
[23] The general rule is that costs follow the result. What this means is that the
successful party should be entitled to costs. I find that the applicant was successful
in opposing the application and costs should be awarded in their favour.
Order:
[24] In the result, I make the following order:
24.1 That application for leave to appeal is dismissed with costs.
S MTffiMUNYE
ACTING JUDGE OF THE IDGH COURT
Appearances:
Counsel for Respondent/Plaintiff: Adv Tait
Attorneys for Respondent/Plaintiff: Knowles
(jeremy@abgross.co.za)
Hussain
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Lindsay Inc
Counsel for Applicant/Defendant: Adv R van Wyk (roxy@capebar.co.za)
Attorneys for Applicant/Defendant: C /O Sohn and Wood Attorneys
( wemer(a,mpc.law .za)