Bhambatha Investments (Pty) Ltd v Vilakazi and Others (03339/2011) [2014] ZAGPJHC 377 (27 November 2014)
The court found that the three-year delay in bringing the application for leave to appeal was unjustified and not explained by the applicant. The absence of condonation or affidavit explaining the delay was fatal to the application. Furthermore, the main grounds of appeal, including allegations of fraud and breach...
Source-derived case information.
- Citation
- [2014] ZAGPJHC 377
- Parties
- Applicant: Bhambatha Investments (Pty) Ltd; Respondent: Albert Ndeleni Dupree Vilakazi; Respondent: Cynthia Lindiwe Mathe; Respondent: Edward Nathan; Respondent: Sonnenbergs (Pty) Ltd
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 03339/2011
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- Victor
- Legal Topics
- Leave to Appeal, Director Fiduciary Duties, Fraud, Condonation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bhambatha Investments (Pty) Ltd
Applicant
Albert Ndeleni Dupree Vilakazi
Respondent
Cynthia Lindiwe Mathe
Respondent
Edward Nathan
Respondent
Sonnenbergs (Pty) Ltd
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Legal Issues
- 1 Whether the application for leave to appeal should be granted despite a three-year delay.
- 2 Whether the first respondent acted fraudulently as alleged by the applicant.
- 3 Whether breach of fiduciary duty by the first respondent was established.
Ratio Decidendi
The court found that the three-year delay in bringing the application for leave to appeal was unjustified and not explained by the applicant. The absence of condonation or affidavit explaining the delay was fatal to the application. Furthermore, the main grounds of appeal, including allegations of fraud and breach of fiduciary duty, were not properly raised in the founding affidavit, and no evidence was provided regarding the alleged loss to Prince Zulu. The court concluded that there was no reasonable possibility that another court would reach a different conclusion and dismissed the application for leave to appeal with costs.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 03339/2011
DATE: 27 NOVEMBER 2014
NOT REPORTABLE
In the matter between:
BHAMBATHA INVESTMENTS (PTY) LTD.........................................................................Applicant
and
ALBERT NDELENI DUPREE VILAKAZI................................................................First Respondent
CYNTHIA LINDIWE MATHE................................................................................Second Respondent
EDWARD NATHAN.....................................................................................................Third Respondent
SONNENBERGS (PTY) LTD
JUDGMENT
VICTOR J:
[1] The applicant seeks leave to appeal against the judgment handed down on 22 January 2012.
[2] An important point was raised in relation to the applicant of the three year delay in finalising this application for leave to appeal. It is astonishing that such a delay has occurred. Whilst it is correct I was on circuit court for a term it certainly was not for 3 years. This dilatoriness ought not to be condoned especially in the light of an absence of condonation or at least an explanation on affidavit. See Universal Product Network v Mabaso [2006] 3 BLLR 274 (LAC).
[3] In order to bring finality to this matter in my court I will nonetheless consider the merits of the application for leave to appeal.
[4] The main area of appeal is this court’s failure to make a finding that the first respondent acted fraudulently. Other issues were raised in argument. For example, the first respondent’s breach of his fiduciary duty as director of the company and that it had to be implied from the papers that Prince Zulu had not been paid. Unfortunately none of this was raised in the founding affidavit and Prince Zulu did not depose to an affidavit about the loss.
[3] In my view there is no reasonable possibility that another court will come to a different conclusion.
The order that I make is:
The application for leave to appeal is dismissed with costs.
VICTOR J