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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: D3133/2025
In the matter between:
MOUNTAIN MEADOW INVESTMENTS (PTY) LTD FIRST APPLICANT
(Registration Number: 2015/451359/07)
JIVESH RAJENDRAN PATHER SECOND APPLICANT
Identity Number: 9[...]
and
CAPITEC BANK LIMITED RESPONDENT
Coram: MOSSOP J
Heard: 22 April 2026
Delivered: 22 April 2026
ORDER
The following order is granted:
1. The application for condonation is refused with costs.
2. The application for leave to appeal is struck off the roll with costs.
2
3. The costs ordered in paraphs 1 and 2 shall be paid by the applicants jointly
and severally, the one paying the other to be absolved, on the scale as between
attorney and client.
JUDGMENT
MOSSOP J:
Introduction
[1] On 21 January 2026, there was an opposed motion on my roll. The
respondents in that opposed motion are now the applicants in the application before
me and I shall therefore refer to the m as ‘the applicants’. When the opposed motion
was called on 21 January 2026, there was no appearance for the applicants . I
accordingly granted two money judgments against the m, jointly and severally, for
payment of the amount of R2 098 877.35 and R4 543.47 respectively, together with
orders for the payment of interest on the aforesaid amounts and costs. In doing so, I
delivered a full ex tempore judgment.
[2] What is before me now is an application for leave to appeal the judgment
that I granted on 21 January 2026. Given the lateness of the delivery of the
application for leave to appeal, there is also an application for condonation for that
lateness.
[3] The first applicant is a private company . The second applicant is its guiding
mind and I permitted him to advance argument on behalf of the first applicant.
Condonation
[4] Uniform rule 49(1)(b) provides as follows:
‘When leave to appeal is required and it has not been applied for at the time the judgment or
order is given, application for such leave, stating the grounds for the application, shall be
made within 15 days after the date of the order appealed against:
Provided that -
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(i) when the reasons or the full reasons for the court's order are given on a date later
than the date of the order, such application may be made within 15 days after such later
date; and
(ii) the court may, upon good cause shown, extend the aforementioned periods of 15
days.’
[5] The applicants accordingly had 15 days from 2 2 January 2026 to deliver
their application for leave to appeal. The applications for condonation and for leave
to appeal were delivered to the Registrar of this court on 26 March 2026 , slightly in
excess of two months after judgment was handed down. It is for this reason that the
applicants seek condonation for the late lodging of the ir application for leave to
appeal.
The allegations in support of condonation
[6] The second applicant has deposed to an affidavit in support of the
condonation application. It is a rolled up affidavit, dealing both with condonation and
the basis of the application for leave to appeal. It is a substantial document that is
some 32 pages long.
[7] Despite its g reat length, the allegations advanced in support of the
application for condonation are so brief that they can easily be quoted in full in this
judgment. The allegations populate four short paragraphs u nder the heading
‘Condonation’. They read as follows:
‘1. I hereby like to apply for Condonation for the late filing of this Application, and seek
Leave to Appeal the judgement granted on 21 st January 2026 by the Honourable Justice
Mossap (sic).
2. We have been prejudiced by the legal coun sel representing myself and the first
applicant. The plethora of proper ly indexed documents, as described in Annexure 3, was
given to the legal coun sel representing the first applicant. However, as indicated by the
Honourable Judge Mossap, the Answering affidavit drafted by the legal counsel representing
the first applicant is vague and embarrassing as indicated by Annexure (page 4 of the
Judgement):
Judgement):
[Then followed an extract from the judgment that I delivered, which is not repeated]
3. I seek leave to appeal this Judgement, to submit tangible evidence of substance to
assist the court to make a properly informed, impartial and fair judgement of the issues in
dispute.
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4. I respectfully submit, that there are excellent prospect of success in this application,
and if the proposed appeal is successful, it will create a benchmark for the respondent to
ensure that they abide by their Code of Banking Practice and Fiduciary Duties when
performing their Due Diligence processes in the future.’
[8] That is the entire condonation application.
General principles
[9] The granting of an order of condonation is not simply a formality that can be
claimed as of right . Facts must be advanced to satisfy the court that a proper and
complete explanation has been given for the failure to observe the rules of this court.
This is because the law cherishes finality in its proceedings,1 and cases should not
be prolonged by a party drawing out proceedings unnecessarily and on spurious
grounds.
[10] The court hearing an application for condonation is endowed with a
discretion
that it must exercise judicially. That simply means that the court must not exercise its
discretion capriciously but must exercise it for substantial reasons. In other words, if
a discretion is exercised on no proper grounds, then it has not been judicially
exercised.2
[11] As to what must be advanced in a condonation application, the
Constitutional Court i n Van Wyk v Unitas Hospital and Another (Open Democratic
Advice Centre as Amicus Curiae), explained that:
‘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
1 The principle of the finality of litigation is expressed in the maxim interest rei publicae ut sit finis
litium (it is in the public interest that litigation be brought to finality). See also: Schmidlin v Multisound
(Pty) Ltd 1991 (2) SA 151 (C) page 156A -D; Vermeulen and Another v Bense Building Contractors
CC [2025] ZAKZPHC 112 para 61.
2 Merber v Merber 1948 (1) SA 446 at 452-3.
CC [2025] ZAKZPHC 112 para 61.
2 Merber v Merber 1948 (1) SA 446 at 452-3.
3 Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007]
ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) para 22.
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[12] In Grootboom v National Prosecuting Authority,4 the majority judgment of the
Constitutional Court, observed that:
‘It is now trite that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the 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.’
The test
[13] The test to be applied is whether it is in the interests of justice that
condonation should be granted.5 That question is best answered by a consideration
of the following
factors:
(a) the degree of lateness or the extent of non -compliance with the prescribed
time frame;
(b) the explanation for the lateness or the failure to comply with time frames;
(c) the prospects of success or the existence of a bona fide defence in the main
case;
(d) the importance of the case,
(e) the respondent’s interest in the finality of the judgment;
(f) the convenience of the court; and
(g) the avoidance of unnecessary delay in the administration of justice.
[14] The factors just mentioned were identified by Zondo J in his dissenting
judgment in Grootboom.6 They are, nonetheless, the generally recognised factors
that are applicable when the issue of condonation is considered.
[15] Must all those factors be considered in each and every case? It appears not,
for in NUM v Council for Technology, Myburgh JP stated that:
4 Grootboom v National Prosecuting Authority 2014 (1) BCLR 65 (CC) (Grootboom) para 23.
5 Ibid para 22.
6 Most of them were also identified by Bosielo J in the majority judgment in that matter.
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‘[t]here is a further principle which is applied and that is, without a reasonable and
acceptable explanation for the delay, the prospects of success are immaterial, and without
prospects of success, no matter how good the explanation for the delay, an application for
condonation should be refused.’7
[16] That approach was later confirmed by Zondo J in Grootboom when he
explained that:
‘… some of the factors may justifiably be left out of consideration in certain circumstances.
For example, where the delay is unacceptably excessive and there is no explanation for the
delay, there may be no need to consider the prospects of success. If the period of delay is
short and there is an unsatisfactory explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence of reasonable
prospects of success, condonation may be refused where the delay is excessive, the
explanation is non -existent and granting condonation would prejudice the other party. As a
general proposition the various factors are not individually decisive but should all be taken
into account to arrive at a conclusion as to what is in the interests of justice.’8
Analysis
[17] The delay in this instance is a period slightly in excess of two months. That is
not an insignificant period. Indeed, that was the same period of delay in the matter of
eThekwini Municipality v Ingonyama Trust .9 In that matter , condonation was sought
and an explanation for the delay was given but was found to be wanting by the
Constitutional Court and the condonation application was accordingly refused. That
being said, I do not , however, hold the view that matters involving similar periods of
delay should all lead to the same result , namely refusal of condonation, because
each case is to be determined on its own unique facts.
[18] The facts of this matter reveal that despite the existence of a substantial
delay, no explanation for it s occurrence has been advanced by the applicants. The
delay, no explanation for it s occurrence has been advanced by the applicants. The
case may be of some importance to the applicants but it appears to me to hold no
interest to any other person nor does it have any remarkable legal significance
7 National Union of Mineworkers v Council for Mineral Technology [1998] ZALAC 22; [1999] 3 BLLR
209 (LAC) (NUM) para 10.
8 Ibid para 51.
9 eThekwini Municipality v Ingonyama Trust [2013] ZACC 7; 2013 (5) BCLR 497 (CC); 2014 (3) SA
240 (CC).
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despite the lofty sentiments expressed by the second applicant in his affidavit
delivered in support of the condonation application. The respondent clearly desire s
that this matter be brought to its natural end and it would be inconvenienced if the
matter were to be allowed to limp on, thereby occasioning a delay in the
administration of justice.
[19] Both Zondo J and Myburgh JP in their respective judgments mentioned that
where there is no explanation for a delay, whether there is any prospect of success
should an appeal be allowed becomes immaterial. That is the position in this matter.
There is simply no explanation at all for the delay in bringing the application for leave
to appeal. Not a single fact is advanced to explain what the applicants did between
21 January 2026, when the judgment sought to be appealed was delivered , and 26
March 2026, when this application was launched. There is accordingly no need, on
the authority of Grootboom and NUM to consider the applicants’ prospects of
success for the application must fall at the first hurdle . In Chetty v Law Society,
Transvaal,10 the Appellate Division remarked as follows when dealing with an
application for the rescission of a judgment:
‘And ordered judicial process would be negated if, on the other hand, the party who could
offer no explanation of his default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him rescinded on the ground that he had reasonable
prospects of success on the merits.’
Those words apply equally to a party seeking condonation who provides no
explanation for the delay that the court is requested to overlook and condone.
[20] I have, nonetheless considered the quintessence of the reasons why the
applicants say that they have prospects of success on appeal. The explanation is
lengthy, covering 24 of the 32 pages that make up the application. Unfortunately,
nothing that is there said appears in the applicants’ answering affidavit delivered in
nothing that is there said appears in the applicants’ answering affidavit delivered in
the main application . As Ms Thobela-Mkhulisi, who appears for the respondent this
morning, states in her heads of argument, an application for leave to appeal is not
designed to afford an applicant an opportunity to present new facts and make out a
new case. The applicants appear to labour under th e incorrect apprehension that
they may do so. In this they are both incorrect.
10 Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765E.
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[21] I am unpersuaded, therefore, that even if condonation had been properly
addressed by the applicants, which it has not, that they have any prospects of
success on appeal. As Wallis J observed in Dexgroup (Pty) Ltd v Trustco Group
International (Pty) Ltd and Others:
‘The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial
resources are not spent on appeals that lack merit.’11
[22] Those sage words apply fully to the facts of this application for this is an
application for leave to appeal that lacks any merit. The application for condonation
must fail and as a consequence the application for leave to appeal must be struck
from the roll.
Costs
[23] As to the costs of th is application, the parties agreed when concluding the
loan agreement, the overdraft agreement, and the deed of suretyship that lie at the
heart of their dispute that any costs arising out of litigation between them would be
paid by the losing party on the attorney and client scale. There is no reason to
deviate from their agreement.
Order
[24] I accordingly grant the following order:
1. The application for condonation is refused with costs.
2. The application for leave to appeal is struck from the roll with costs.
3. The costs ordered in paraphs 1 and 2 shall be paid by the applicants jointly
and severally, the one paying the other to be absolved, on the scale as between
attorney and client.
_____________________________
11 Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others [2013] ZASCA 120; 2013 (6)
SA 520 (SCA); [2014] 1 All SA 375 (SCA) para 24.
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MOSSOP J
APPEARANCES
Counsel for the applicants: In person
Counsel for the respondent: Ms J Thobela-Mkhulisi
Instructed by: KWA Attorneys
24A Grant Avenue
Victoria
Johannesburg
Locally represented by:
Martin Law Incorporated
41 Westville Road
Westville