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South Africa Ruling

Kwazulu-Natal High Court, Durban

Bhambatha Investments (Pty) Ltd v Vilakazi and Others (03339/2011) [2014] ZAKZDHC 62 (27 November 2014)

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Professional case brief

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Source document

01

Holding and result

The court found that the three-year delay in finalising the application for leave to appeal was inexcusable and not supported by any condonation or explanation on affidavit. The main grounds for appeal, namely alleged fraudulent conduct and breach of fiduciary duty by the first respondent, were not properly pleaded in the founding affidavit, nor was there any supporting affidavit from Prince Zulu regarding the alleged loss. 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.

02

Material facts

Parties

Bhambatha Investments (Pty) Ltd

Applicant

Albert Ndeleni Dupree Vilakazi

Respondent

Cynthia Lindiwe Mathe

Respondent

Edward Nathan

Respondent

Sonnenbergs (Pty) Ltd

Respondent

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal After Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that the court erred in failing to find that the first respondent acted fraudulently and breached his fiduciary duty as a director. It is argued that it should be implied from the papers that Prince Zulu had not been paid, indicating loss to the company. The applicant seeks leave to appeal on these grounds.
Respondent
The respondents argue that the application for leave to appeal is fatally defective due to a three-year delay without condonation or explanation. They further submit that the issues raised regarding fraud and fiduciary duty were not pleaded in the founding affidavit, nor was any affidavit from Prince Zulu provided to substantiate the alleged loss.

05

Court’s reasoning

  1. 01

    Universal Product Network v Mabaso [2006] 3 BLLR 274 (LAC)

    Dilatory conduct in prosecuting an application for leave to appeal should not be condoned in the absence of a proper explanation or condonation application.

  2. 02

    General principle of South African appellate procedure

    Leave to appeal should only be granted where there is a reasonable possibility that another court may come to a different conclusion.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the three-year delay in finalising the application for leave to appeal was inexcusable and not supported by any condonation or explanation on affidavit. The main grounds for appeal, namely alleged fraudulent conduct and breach of fiduciary duty by the first respondent, were not properly pleaded in the founding affidavit, nor was there any supporting affidavit from Prince Zulu regarding the alleged loss. 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.

Obiter and limits

  • The court expressed concern at the astonishing delay in bringing the application for leave to appeal and emphasised the importance of finality in litigation.
  • The absence of an affidavit from Prince Zulu was noted as a significant omission in the applicant's case.

Court disposition

Application for leave to appeal dismissed with costs.

  • The application for leave to appeal is dismissed with costs.

Source and reliance status

Kwazulu-Natal High Court, Durban

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Judgment text

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Source document

Kwazulu-Natal High Court, Durban

Ruling

[2014] ZAKZDHC 62

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH COURT OF South Africa

GAUTENG LOCAL DIVISION,

JOHANNESBURG

CASE NO: 03339/2011

DATE: 27 NOVEMBER 2014

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

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Universal Product Network v Mabaso [2006] 3 BLLR 274 (LAC)

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