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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 258/2009

In the matter between:-

BUTI HENDRIK MOLEFE .............................................................Applicant

and

C J BOTHA ...............................................................................Respondent

DATE OF HEARING : 21 SEPTEMBER 2012

DATE OF JUDGMENT : 27 SEPTEMBER 2012

COUNSEL FOR THE APPLICANT : ADV VAN TWISK

COUNSEL FOR THE RESPONDENT : ADV VAN ROOYEN

APPLICATION FOR LEAVE TO APPEAL

JUDGMENT

HENDRICKS J

Introduction:-

[1] The Applicant was the Second Defendant during the trial which was held over two days namely the 30^th and 31^st August 2011. Written submissions were presented on the 30^th September 2011 and the judgment was delivered on 13 October 2011. An order was made inter alia that the Applicant, as Second Defendant, pay Plaintiff’s damages plus interest and costs.

[2] A notice of application for leave to appeal was filed with the Registrar of this Court on 13 April 2012. Coupled with this was also filed, a notice for condonation for the late filing of the application for leave to appeal. Not only the application for leave to appeal but also the application for condonation for the late filing thereof are opposed.

[3] The affidavit deposed to by the Applicant explains that he only became aware of the judgment during January 2012 when he was informed by his attorney (who is still the attorney of record). Apparently, the attorney did not know how to break the news to the Applicant that judgment was not granted in his favour. Coupled with this is also the issue of outstanding legal fees due to counsel, which prevented the attorney to instruct counsel to proceed with the application for leave to appeal timeously.

[4] The attorney filed a supporting affidavit in which he confirmed that due to the long standing relationship he had with the Applicant, he could not break the news of being unsuccessful with the trial shortly before the festive season.

[5] When he instructed counsel to prepare papers in order to file an application for leave to appeal, it was met with resistance as there was still an amount of legal fees outstanding. This was conveyed to the Applicant and it was sorted out on 23 January 2012.

[6] Early February 2012, the attorney learnt that counsel was indisposed and that he needed to brief another counsel. This happened on 19 March 2012. The new counsel was on leave and therefore unavailable for the period 28 March 2012 to 09 April 2012. Thereafter, the mandate was executed which resulted in the filing of the aforementioned notices and applications on 13 April 2012.

[7] As already mentioned, these applications are opposed. A warrant of execution was issued on 23 February 2012. An attempt was made on 09 March 2012 to execute upon the warrant which turned out to be unsuccessful. It was executed on 04 April 2012. It is quite apparent that only after the warrant was executed, did the Applicant lodge and filed the notice of application for leave to appeal dated 13 April 2012. This was done in my view, to halt the sale in execution that is bound to follow. It illustrates quite clearly the mala fides on the part of the Applicant and his attorney. It is undoubtedly a deliberate attempt to frustrate the Plaintiff/Respondent to execute upon the judgment granted in his favour.

[8] Condonation is not a formality and simply there for the taking. Good cause must be shown why the Applicant did not timeously act to prosecute his appeal. The weak attempt to hide behind his attorney is with the greatest of respect unpersuasive. There is a point beyond which a litigant cannot hide behind the inaptness of his attorney. He is burdened with the task to see to it that his case is dealt with timeously and appropriately by his attorney. It is at the end of the day him who gives instructions to the attorney. In my view, the Applicant failed to adequately explain the delay.

[9] A court faced with an application for condonation must also have regard to the prospects of success on appeal. It is trite law that it is incumbent upon an Applicant in an application for leave to appeal to proof the existence of reasonable prospects of success on appeal. Put differently, the Applicant must show that a reasonable possibility exist that another court might come to a different conclusion or decision on the facts than what the trial Court had arrived at.

[10] The grounds of appeal raised were comprehensively dealt with in the judgment of this Court dated 13 October 2011 and need not be repeated herein. The contentions issue as to whether or not the erstwhile First Defendant was in the employment of the Applicant and acted within the cause and scope of his duties was addressed in detail in that judgment. In my view, no other court will come to a different decision on the facts presented, than what this Court had arrived at. There are no prospects of success on appeal.

Order:-

Consequently, the following order is made:-

[i] The application for condonation is refused.

[ii] The application for leave to appeal to either the Full Bench of this division or to the Supreme Court of Appeal is refused.

[iii] The Applicant is ordered to pay the costs of this application.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT: SMIT STANTON INC

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