Burger and Another v Piognant Progress BK and Others (2473/2009) [2010] ZAWCHC 379 (19 April 2010)

Burger and Another v Piognant Progress BK and Others (2473/2009) [2010] ZAWCHC 379 (19 April 2010)

The application for leave to appeal was refused because the first respondent failed to provide any reason or explanation for not presenting direct evidence from Ms Barry, despite being aware that admissibility of hearsay evidence was in issue. The court found that the interests of justice did not require admission of the hearsay evidence, as the first respondent was not prevented from placing the evidence before the court but simply failed to do so. The prospect of success on appeal was found to be unreasonable, and the argument that an affidavit could be admitted on appeal was irrelevant to the present application.

Citation
[2010] ZAWCHC 379
Parties
Applicant: Andre Burger; Applicant: Maria Elizabeth Burger; Respondent: Poignant Progress BK; Respondent: Registrateur van Aktes; Respondent: ABSA Bank BPK; Respondent: Nedbank BPK; Respondent: Oasis Regspersoon
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 April 2010
Case Number
2473/2009
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Main Judgment
Outcome
Application for leave to appeal dismissed with costs.
Judges
S J Koen
Legal Topics
Admissibility of Hearsay Evidence, Law of Evidence Amendment Act Section 3, Leave to Appeal, Striking Out Evidence
Civil Procedure Admissibility of Hearsay Evidence Law of Evidence Amendment Act Section 3 Leave to Appeal Striking Out Evidence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Andre Burger

Applicant

Maria Elizabeth Burger

Applicant

Poignant Progress BK

Respondent

Registrateur van Aktes

Respondent

ABSA Bank BPK

Respondent

Nedbank BPK

Respondent

Oasis Regspersoon

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Main Judgment

Legal Issues

  1. 1 Whether the exclusion of hearsay evidence was correct under section 3 of the Law of Evidence Amendment Act.
  2. 2 Whether there is a reasonable prospect that an appeal court would admit the hearsay evidence.
  3. 3 Whether the interests of justice require admission of the hearsay evidence.

Ratio Decidendi

The application for leave to appeal was refused because the first respondent failed to provide any reason or explanation for not presenting direct evidence from Ms Barry, despite being aware that admissibility of hearsay evidence was in issue. The court found that the interests of justice did not require admission of the hearsay evidence, as the first respondent was not prevented from placing the evidence before the court but simply failed to do so. The prospect of success on appeal was found to be unreasonable, and the argument that an affidavit could be admitted on appeal was irrelevant to the present application.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

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