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IN THEHIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

CASE NO:       81013/2014

DATE: 2020/02/14

17/3/2020

 

SASFIN BANK LIMITED                                                                                          Applicant

 

and

 

KARIBU LEISURE RESORT
AND CONFERENCE CC AND ANOTHER                                                           Respondent

J U D G M E N T (Leave to appeal)

DAVIS, J

This is an application for leave to appeal in respect of a civil trial which came before me on 11 March 2019. That is 11 months ago. At the conclusion of the trial on that day I indicated that judgment would be delivered the next day that is 12 March 2019.

On 12 March I delivered an oral judgment which in my bench book spans, together with references to cases, quite a number of pages. In the end when reduced to typescript it runs to 21 pages.

On 15 January of this year, that is 2020,the unsuccessful plaintiff as applicant then the launched an application for leave to appeal. It was served on the respondent's attorneys the next day and filed at court on 24 January 2020.

Together with the application a condonation application was also filed. The condonation application was supported by a founding affidavit deposed to by the plaintiff's attorney.

It appears that there was some miscommunication between the instructing attorney and the correspondent attorney for the plaintiff.

This led to the plaintiff's deponent to the founding affidavit alleging on oath that reasons , aIternatively full reasons for the order granted on 12 March 2019 was not provided when the order was made.

This , of course , as already indicated, is not true. The affidavit continues to state that the full judgment was only thereafter prepared and dated 29 November 2019, allegedly then only setting out the reasons for the order.

That of course is also not true. The typewritten judgment of the transcript was revised and signed on 22 November 2019, non constat that it had already been delivered on 12 March 2019.

On 12 March 2019 the plaintiff was also not unaware that the judgment had been handed down. It had, albeit through its correspondent attorney, briefed counsel to note the judgment. If for a moment the instructing attorney is excused for having relied on the deficient information received from the correspondent attorney, there is still a concerning feature of the affidavit in support of condonation.

It appears therein that the correspondent attorney, for whatever reason, only transmitted the typewritten judgment revised on 22 November 2019 to the instructing attorney on 3 December 2019.

The attorney deposing to the affidavit in support of condonation then proceeds in paragraph 8 thereof to state that the dies for the delivery of the application therefore on his calculation calculating from 3 December 2019 expired on 30 December 2019.

One would have expected an attorney receiving such a judgment and well aware of the expiry of the dies in the holiday period to make immediate work thereof.

There is an absence in the paragraphs of the affidavit dealing with any such "work" and in fact, in paragraph 10 the attorney states that the judgment was received, on the dates disclosed by the attorney himself " shortly" before the attorney' s offices closed for the December holidays on 11 December 2019.

The only explanation as to what could have happened between 3 December and 11 December is found in paragraph 11 and 12 which read as follows.

"11.          The applicant's counsel further went on leave from 6 December 2019 to 8 January 2020.

12.            On 8 January 2020 our offices instructed counsel to proceed with the drafting of the application for leave to appeal. "

 

There is no indication that anything remotely was attempted to be done between 3 and 6 December neither was an explanation put forward that it was impossible to do the necessary in those dates or, at the very least, that the respondents were even contacted for consent to excuse the late delivery or to grant extension of time.

Having stated these defects in the application for condonation, I debated with counsel whether the nature of the relief claimed namely leave to appeal was such that there is such a glaring or overwhelming pobable prospect of success on appeal that whatever deficiencies the condonation application may suffer from, shouId or must be overlooked or accepted.

Having again debated the merits of the matter with both regarding the nature of the product purchased as well as the conditions or preconditions set by the respondent, read with the case law relied on in the judgment, I am not convinced that there is such a sufficient prospect of success on appeal that condonation should be granted or that the application for leave to appeal should be granted despite the insubstantial grounds for condonation.

Accordingly, the condonation application is dismissed with costs and insofar as any application for leave to appeal might have survived condonation, the application for leave to appeal is similarly dismissed with costs.

 

 

DAVIS, J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

DATE: Revised: 17/3/2020 

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