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Case No: 253/07

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

MOSES SIPHO MZIAKO FIRST APPLICANT

MOSAI ELIZABETH MZIAKO SECOND APPLICANT

and

CHANGING TIDES 17 (PROPRIETARY) RESPONDENT

LIMITED N O

JUDGEMENT

LEEUW J:

Introduction:

[1] This is an application for leave to appeal to the Full Bench of this Honourable Court against an order of Summary Judgement granted against the Applicants which order was to the following effect:

“(1) The Respondents (Applicants) are ordered to pay the sum of R286 478-66.

(2) Interest thereon at the rate of 13.90%per annum, compounded monthly in arrear from 12 January 2007 to date of payment.

(3) An order declaring ERF 5258 GEELHOUTPARK EXTENSION 9 TOWNSHIP, REGISTRATION DIVISION JQ NORTH WEST PROVINCE, MEASURING: 207 SQUARE METRES, HELD BY DEED OF TRANSFER NO. T104693/2006 to be specially executable with the proviso that only attachment of the property may be proceeded with pending finalization of the matter under Case Number 711/2007.

(4) The Respondents’ (Applicants’) counter-application is dismissed with costs, inclusive of costs in the summary Judgement.”

[2] The Applicants also filed an application for the condonation of the late filing of the application for leave to appeal. The application for leave to appeal as well as condonation for the late filing thereof, dated 5^th February 2008, was filed with the Registrar of this Court. (The Registrar’s date is not reflected.).

[3] The application for leave to appeal was opposed by the Respondents and a notice to that effect was filed with the Registrar on 15^th February 2008 as well as on the Applicants on the 14 February 2008 at an address “c/o Oumatjie George, Motswedi FM, Broadcast House, Luthuli Road, Mmabatho. Tel (012) 701 5899 Fax (012) 323 4388 Cell 078 255 3660.”

[4] A “Notice of allocation of Trial date” from the Registrar, dated 7^th February 2008, was sent to the address of the Applicants mentioned in paragraph [3] above, and to the Respondents correspondent attorneys in Mafikeng. (D C Kruger 29 Noord Street, Mafikeng).

[5] The matter was set down for hearing by the Respondents on the 6^th March 2008 at 10h00. The Notice of Set Down, dated 18^th February 2008 was filed with Registrar on that date. The attorneys of record on behalf of the Respondents on the Notice of Set down are “VELILE TINTO & ASSOCIATES, CNR HANS STRYDOM & DISSELBOOM STREET, WAPADRAND, PRETORIA TEL (012) 807 3366 FAX (012) 807 5299 REF A SMIT/DBS/S531.” The correspondent attorneys are D C Kruger Attorneys of Mafikeng.

[6] The Notice of Set Down was also served on the Applicants at the address indicated in paragraph [3] above and the copy thereof was on the 8^th February 2008 received on his behalf.

[7] Another Notice of Set Down was served on the Applicants and filed at the aforementioned address, where it was indicated that the matter would be heard at 9h00 on the 6^th March 2008 instead of 10h00 as previously stated. This notice was received and acknowledgement of receipt signed on behalf of the Applicant on the 27^th February 2008.

[8] At the hearing of this application on the 6^th March 2008, Counsel for the Respondents indicated that several attempts were made to contact the Applicant, Mziako at the telephone numbers provided in his application but to no avail. It was also brought to my attention that the cellphone number on the application for leave to appeal (078 255 3660) and the telephone number (012) 701 5899 and Fax No (012) 323 4388 are the same as the numbers as provided by Elizabeth Mosai Moche in Case 711/2007 against Mziako and others, in which case the attorneys of record were D L Phaahle Attorneys.

[9] I allowed the Respondents to argue the application for leave to appeal having delayed the resumption of the Court up to 11h00. The application was unopposed and I am satisfied that the Applicants were properly informed of the hearing of this application.

[10] Furthermore, I find no merit in the application filed by the Applicants and am of the view that no reasonable Court will come to a finding other than the one arrived at.

[11] The application for leave to appeal as well as the application for the condonation of the late filing thereof is accordingly dismissed with costs.

_________________________

M M LEEUW

JUDGE OF THE HIGH COURT

APPEARANCES:

Date of hearing : 06 March 2008

Date of judgement: 17 March 2008

For the Applicant : No appearance

For the Respondents: Adv Roos

Attorneys for the Applicant: C/o Oumatjie George, Motswedi FM, Broadcast House Luthuli Road, Mmabatho

Attorneys for Respondents: D C KRUGER ATTORNEYS

Ref: A SMIT/DBS/S531 instructed by Velilo Tinto & Associates, Cnr Hans Strijdom & Disselboom Streets, Wapadrand, Pretoria

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