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Camagu v Lupondwana and Others (328/2007) [2009] ZAECHC 15 (5 February 2009)

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IN THE HIGH COURT OF SOUTH AFRICA

(BISHO)

Case no.: 328/2007


In the matter between:


LUNTU JACKSON CAMAGU Applicant


and


SIPELO DINGAAN LUPONDWANA 1st Respondent

ANITA LWANDISA LUPONDWANA 2nd Respondent

NAYE LUPONDWANA 3rd Respondent

BUFFALO CITY MUNICIPALITY 4th Respondent

FIRSTRAND BANK LIMITED 5th Respondent

BULELWA PORTIA FIGLAN 6th Respondent

THE REGISTRAR OF DEEDS 7th Respondent






JUDGMENT IN AN APPLICATION FOR CONDONATION AND LEAVE TO APPEAL


D. VAN ZYL J:


[1] The applicant was the owner of an immovable property, being erf no. 855, Bhisho. Pursuant to a judgment obtained by the fourth respondent against the applicant the said property was sold at a sale in execution.

[2] The applicant approached this Court for an order declaring the agreement of sale concluded pursuant to the sale in execution to be invalid, for the transfer of the property to the first and second respondents to be cancelled, for the cancellation of a mortgage bond over the property registered in favour of the fifth respondent, and for the property to be transferred to the sixth respondent to whom the applicant had since sold it.



[3] At the hearing of the matter the applicant's case was confined to the submission that clause 5 (c) of the said agreement constitutes a suspensive condition, and that the failure of the purchaser to comply therewith caused the agreement to have lapsed. This Court found that the applicant was not entitled to the relief claimed on the basis contended for and made three findings. The first is that clause 5 (c) in the agreement does not constitute a suspensive condition but rather a time clause (paragraph [15] of the judgment); secondly, there is insufficient evidence to conclude that the balance of the purchase price was not paid timeously or that the agreement was cancelled as required by clause 15 thereof (paragraphs [19] and [20] of the judgment), and lastly, that the applicant's failure to cite the sheriff as a party to the application amounted to a material non-joinder (paragraph [21] of the judgment).


[4] On 7 August 2008 the application was as a result dismissed with costs. On 3 September 2008 the applicant made two applications. The first is an application for leave to appeal against the judgment of this Court. The second application is an application for condonation of the late filing of the application for leave to appeal. When the applicant failed to set the said applications down for hearing, the matter was enrolled at the request of the first and second respondents.



[5] Dealing firstly with the condonation application, the standard for considering an application of this nature is the interests of justice. (Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others 2003 (11) BCLR 1212 (CC) at para [11]). Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of a discretion on an objective conspectus of all the facts. 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.' (Van Wyk v Unitas Hospital and Others [2007] ZACC 24; 2008 (4) BCLR 442 (CC) at para [20].)

[6] The importance to the applicant of the issue raised and his interest in the subject matter of the application, cannot be gainsaid. It must however be weighed against the other considerations that are relevant in the context of the present matter. The first is that an applicant for condonation must give a full explanation for the delay. Condonation is not a mere formality and for the asking, despite the fact that the delay may not have been long, as is the case in the present matter. The applicant failed to provide any explanation for the delay in the filing of the application for leave to appeal. No affidavit accompanied the application and it is as a result not possible to determine if there exists any reasonable explanation for the delay.



[7] The second consideration is the applicant's prospects of success on appeal. The applicant raised two grounds of appeal, namely that this Court erred in finding that clause 5 (c) of the agreement did not constitute a suspensive condition and in holding that the applicant's failure to cite the sheriff amounted to a material non-joinder.



[8] The success of the intended appeal is dependant on the first ground of appeal and Mr Maseti, who represented the applicant in these proceedings, acknowledged that to be the position. I shall accordingly confine a consideration of the applicant's prospects to this ground. Clause

5 (c) relied upon deals with payment of the purchase price and reads as follows:

(c) the unpaid balance together with interest thereupon at the rate of 15.50% subject to variation in terms of the rates charged by the judgment creditor from time to time, reckoned from the 20/10/2004 to date of registration of transfer, shall be paid or secured by a bank guarantee within FOURTEEN (14) days after date of sale.'



[9] It is evident from a reading thereof that clause (c) does not make the existence of the sale subject to payment of the purchase price within the time stated. (Whilst appreciating that the word 'subject' has no a priori meaning. See Pangbourne Properties Ltd v Gill & Rams den (Pty) Ltd 1996 (1) SA 1182 (A) at 1187 I to 1188 A-B).) The provision therein for the payment of the balance of the purchase price within the time stipulated, is rather a material term of a concluded agreement imposing an obligation on the purchaser relating to time and which is capable of being enforced by the seller (in contradistinction to a suspensive or resolutive condition). Non-compliance will entitle the seller to elect to cancel the agreement in terms of clause 15 of the agreement.



[10] The difference between a term that is enforceable and conditions were dealt with in R v Katz 1959 (3) SA 408 (c) at 417; Design and

Planning Service v Kruger 1974 (1) SA 689 (T) at 695 and Venter Agentskappe (Edms) Bpk v De Sousa [1990] ZASCA 37; 1990 (3) SA 103 (A) at 111 C-G and 112 A-J. The clause is in my view not capable of the interpretation contended for by the applicant and no argument has been advanced to convince me otherwise. In fact, Mr Maseti indicated, quite properly in my view, that he found himself unable to advance any further argument in this regard.



[11] However, more important to a determination of the applicant's prospects of success is whether it can be concluded, on the applicant's interpretation of the clause, and on the available evidence, that the purchase price was not paid or secured by a bank guarantee within the required time period. As stated earlier, it was found that because the applicant did not have personal knowledge in this regard, he effectively had to rely on a process of inferential reasoning. This Court found that it cannot be concluded on the facts relied upon, that the inferences sought to be drawn by the applicant are the more probable (paragraphs [19] to [20] of the judgment). The Court's finding in this regard is not one of the grounds of appeal and I fail to see how the appeal can have any prospects of success if this finding remains standing.

[12] I am accordingly of the view that there does not exist a reasonable prospect of success on appeal. A further consideration in determining whether the applicant should be granted condonation is, in the context of the present matter, the interests of the respondents in the finality of the judgment (Federated Employers Fire & General Insurance Co. Ltd and Another v McKenzie 1969 (3) SA 360 A at 363 A). The failure by the applicant to take steps to have the application enrolled for hearing, to file an affidavit in support of the application, and to raise the ground of appeal referred to in the preceding paragraph, leaves me to conclude that the applicant is displaying a lack of seriousness with the application.



[13] For these reasons I am of the view that it is not in the interests of justice to grant condonation. Further, following the approach suggested in National Union of Metalworkers of SA v Jumbo Products CC [1996] ZASCA 87; 1996 (4) SA 735 (A) at 743 H, the application for leave to appeal must also be refused on the merits on the basis that, for the reasons mentioned, there are no reasonable prospects of another court coming to a different conclusion.





[14] In the result the following order is made:



(a) The application to condone the late filing of the application for leave to appeal is dismissed.

  1. The application for leave to appeal is refused.

  2. The applicant is ordered to pay the costs of the applications.


D. VAN ZYL

JUDGE OF THE HIGFTCOURT



Matter heard on : 2 February 2009

Judgment delivered on : 5 February 2009



For the Applicant : Adv Maseti

Instructed By : Malusi & Company Attorneys

c/o Sigabi & Associates 13 Arthur Street King Williams Town





For the 1st and 2nd Respondent : Adv S. Collett
Instructed By : Messrs Hutton & Cook

Sutton Square Queensroad King Williams Town