Glen Afric Property Holdings (Pty) Ltd v Connolly (2012/45658) [2014] ZAGPJHC 232 (23 September 2014)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2012/45658

DATE: 23 SEPTEMBER 2014

In the matter between:

GLEN AFRIC PROPERTY HOLDINGS (PTY) LTD.........................................Applicant

And

CONNOLLY, KEVIN PATRICK ….............................................................Respondent

J U D G M E N T

N F KGOMO, J:

INTRODUCTION

[1] The applicant, who was the respondent in the main matter herein, is applying for leave to appeal against the judgment handed down by me in this Court on 24 May 2013 in which the following order was handed down:

1.1 Payment of the sum of R2 800 000 by the applicant to the respondent;

1.2 Interest on the above sum of R2 800 000 at the rate of 15,5% per annum from 23 February 2010 to date of payment; and

1.3 Costs of the application.

[2] The applicant only served and filed an application for leave to appeal on 24 March 2014 – 10 months after the judgment was handed down. No application for condonation for the late filing of the application for leave to appeal was filed simultaneously with the application for leave to appeal. This (condonation for late filing application) was only served and filed on 13 August 2014 – nearly 5 months after the application for leave to appeal was served.

[3] Before the application for leave to appeal could be embarked upon, this Court first heard the application for condonation which is opposed, vehemently I dare say, by the respondent, Mr Connolly, Kevin Patrick.

CHRONOLOGY OF EVENTS

[4] Issues in this application for condonation for the late filing of leave to appeal will be best understood and contextualised once the chronology of events is set out herein.

[5] As I said, the judgment for which leave to appeal has been filed was handed down on 24 May 2013 with full and comprehensive reasons.

[6] On 1 July 2013 the respondent caused a writ of execution to be issued against the applicant and it was dealt with as follows by the Sheriff, Brits:

6.1 A service was attempted on 18 July 2013 but could not be effected as the Sheriff was advised at the applicant’s place of business

that those who were mandated to deal with such matters there were overseas.

6.2 The Sheriff returned to execute the writ on 25 August 2013 and was advised that the applicant was “busy with” a rescission application which should be on the court process by 1 August 2013. A request was made to the Sheriff to hold its execution until 1 August 2013 and he obliged.

[7] The date of 1 August 2013 came and passed but no application for the rescission of my judgment was launched by the applicant.

The writ was re-sent to the Sheriff and the latter attended on the applicant’s premises on 17 October 2013 where Mr Brooker, the sole shareholder of the applicant was in attendance. A nulla bona return of service was the result of this visit.

[8] On 29 November 2013 the respondent served a section 345 letter on the applicant’s registered office, demanding payment of the judgment debt. The applicant’s attorneys responded to this letter on 16 December 2013, among others –

8.1 tendering to pay directly to SARS any arrear amounts which the respondent may be owing to SARS, limited of course to the amount in the Court Order; and

8.2 indicating that the applicant intends to bring an application for the rescission of the judgment in this Court as soon as the court opens for business in 2014.

[9] It deserves mention here that the above response by the applicant’s attorneys was not made “Without Prejudice”.

[10] The respondent responded to the above letter by theirs dated 20 January 2014 in which he stated that the applicant had left him with no choice but to proceed with a liquidation application.

[11] Indeed, on 3 February 2014 the respondent launched the liquidation application and had it served on the applicant.

[12] When the application for leave to appeal herein was served on 24 March 2014, six (6) weeks had already elapsed after a Ms Brooker for or from the applicant had deposed to the answering affidavit in the liquidation application.

[13] As at the date when this application for leave to appeal was to be heard on 22 August 2014, replying affidavits in the liquidation

application had already been filed and only heads of argument were outstanding by 19 August 2014 when the respondent responded to the condonation application.

THE APPLICABLE LAW AND/OR PRESCRIPTS

[14] Whenever leave to appeal is sought and it was not applied for at the time the judgment was handed down, application for such a relief shall be made and the grounds therefor also shall be furnished within 15 days after the date of the judgment or order appealed against or 15 days after full reasons are handed down[1] (my emphasis).

[15] The court may also upon application on notice and with good cause shown make or grant an order extending or abridging any time parameters prescribed in the Rules of Court.[2]

[16] High Courts have inherent jurisdiction and/or right to grant condonation where principles of justice and fair-play demand it and where the reasons for non-compliance with the time limits have been explained to the satisfaction of the court.[3]

[17] It is so that there is no closed list of reasons or conduct constituting good or sufficient cause for the granting of condonation

for procedural shortcomings in appeals.[4] The court has a discretion which has to be exercised judiciously taking into account all the circumstances of each case.[5]

[18] Among others, the following principles apply when the court exercises its judicial discretion in this regard:

18.1 The standard for considering an application for condonation is the interests of justice and this may depend upon the facts and circumstances of each case, and which is in essence a question of fairness to both sides.

18.2 Factors that are relevant to this enquiry include but are not limited to:

18.2.1 the nature of the relief sought;

18.2.2 the extent and cause of the delay;

18.2.3 the reasonableness of the explanation for the delay;

18.2.4 the importance of the issue to be raised in the intended appeal;

18.2.5 the prospects of success of the appeal;

18.2.6 the effect of the delay on the administration of justify and other litigants; and

18.2.7 the respondent’s interest in the finality of his judgment;

18.3 Factors should not be individually assessed but should be assessed as a whole as they may be interrelated. They should be weighed, one against the other. It may be that a sight delay and a good explanation may help to compensate for prospects of success which may not be that strong or vice versa.[6]

18.4 Negligence on the part of a party’s attorney should also be scrutinised.[7] What the attorney did or did not do should also be weighed against what the litigant represented did to mitigate the problems created.

18.5 However, there is a limit to how and to what extent a litigant can escape his/her attorney’s lack of diligence or the insufficiency of the explanation tendered.[8]

[19] Section 345 of the Companies Act 61 of 1973 (“the Old Companies Act”) reads as follows:

“(1) A company or body corporate shall be deemed to be unable to pay its debts if –

(a) a creditor, by cession or otherwise, to whom the company is indebted in a sum not less than one hundred rand then due –

(i) has served on the company, by leaving the same at its registered office, a demand requiring the company to pay the sum so due; or

(ii) …

and the company or body corporate has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the

reasonable satisfaction of the creditor; or

(b) any process issued on the judgment, decree or order of any court in favour of a creditor of the company is returned by the Sheriff or the messenger with an endorsement that he has not found sufficient disposable property to satisfy the judgment, decree or order or that any disposable property found did not upon South satisfy such process; or

(c) it is proved to the satisfaction of the Court that the company is unable to pay its debts.” (own omission)

ANALYSIS

[20] The applicant concedes that its attorney informed it of the judgment in the main application shortly after it was given. It however puts the blame on the attorney for not advising it regarding its rights and duties in respect of an application for leave to appeal. This reason is not readily comprehensible when one has regard to its contention[9] that it right from the beginning “… wanted to appeal the judgment”, i.e. from the time its attorneys informed it of same.

[21] It is so, as the applicant stated, that it terminated its attorney’s mandate on 14 September 2013 for non-diligence.

However, it does not explain adequately why it only launched leave to appeal proceedings on 24 March 2014. The only explanation proffered, i.e., that it waited to complete a trial on 31 October 2013 cannot in my view and finding be adequate explanation why it did not launch the application for leave to appeal. It kept quiet, then started offering settlement terms and dealing with the resultant liquidation application launched by the respondent linked to the facts of this matter. It only launched the application for leave to appeal in March 2014.

[22] If there is a case for inordinate delay, this was it. The applicant’s contention that it appointed a fresh firm of attorneys and then engaged counsel to advise it on the way forward about the issue of leave to appeal cannot avail it : No time frames or dates are furnished and no confirmatory affidavits from the two sets of attorneys it used up to that stage as well as when counsel’s advice was sought are given.

[23] {The applicant in its submission stated that it had a copy of the judgment transcript by 25 February 2014. When it launched the application for leave to appeal, it knew that it was being launched “heavy-weight” legal advice it had at its disposal, it knew that a condonation application was necessary.}

[24] Counsel for the applicant submitted during argument that a condonation application would only have had to be made once it became clear that the respondents were opposing it.

[25] That in my view cannot be the practice and law. A condonation application is levelled at the court, not the other party. The applicant for condonation is the one asking the court to condone its non-compliance with the rules.

[26] In Commissioner of Inland Revenue v Burger[10] Steyn CJ put this aspect as follows when castigating an applicant’s application for condonation for the late filing of leave to appeal, which was 2 (two) months overdue:

“… There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of the Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are. (Cf Hepworths Ltd v Thornloe & Clarkson Ltd 1922 TPD, 336; Kingsborough Town Council v Thirlwell and Another 1957 (4) SA 533 (N). A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively

by, without so much as directing any reminder or enquiry to his attorney (cf Regal v African Superslate (Pty) Ltd, supra at p. 23 f) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it to be imputed to himself …”

[27] The above case’s ratio is in my view on all fours with what took place here as would be fully expatiated upon.

[28] The applicant accepts as trite the principle that a judgment stands until set aside on appeal or otherwise. It is also common cause that the courts dealing with the matter the applicant finalised on 31 October 2013 and/or the liquidation application between the parties herein are not a court of appeal. It is however also trite that a pending appeal or application for leave to appeal suspends execution of a judgment or order appealed against.[11]

[29] It is also trite that a winding-up application may be used as a form of debt collecting. However it may not constitute an abuse which may occur, among others when an applicant persists with an application notwithstanding the fact that after his presentation it is apparent that it must inevitably fail because there is another remedy available to the applicant and his failure to pursue same thus becomes unreasonable,[12] or the company has noted an appeal against the judgment even though the company was unable to pay its debt,[13] as is the case here.

[30] As has happened, the application for leave to appeal is before me. As such I am the instance that should deal with the application

for condonation for the late filing of the application for leave to appeal.

[31] Before the applicant can proceed to argue the application for leave to appeal, it must first deal with –

31.1 the explanation for its delay in bringing an application for condonation; and

31.2 an explanation why it is alleged by the respondent that its explanation herein is not full or reasonable in relation to the timeousness of the application.

NO FULL OR REASONABLE EXPLANATION FOR FAILURE TO BRING THE APPLICATION TIMEOUSLY

[32] In Van Wyk v Unitas Hospital and Another[14] the Constitutional Court ruled as follows about this aspect:[15]

“An application for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.”

[33] The applicant in this application has not tendered a full explanation about what happened during the period between the filing

of the application for leave to appeal and that for condonation. The entire period is not covered in its explanation. It is therefore

neither full nor reasonable.

EXPLANATION TO BE FULL AND REASONABLE

[34] It is common cause that in its affidavit and in argument in this Court, the applicant does not set out the following material

facts:

34.1 What the Sheriff encountered at its premises on 18 and 25 July 2013. What the return of service of 25 July 2013 states- that when execution of the writ was attempted, he (Sheriff) was told the applicant was busy with an application for rescission of the judgment herein.

34.2 On 17 October 2013 the Sheriff attended at the applicant’s principal place of business and a nulla bona return was rendered, the reason being that the applicant could not point out any executable movable property.

34.3 On 16 December 2013 the applicant’s erstwhile attorneys sent an e-mail to the respondent’s attorneys tendering to pay the judgment debt and also intimating that it was preparing an application to rescind the judgment.

[35] The applicant is under obligation when asking for condonation to provide a full and frank disclosure. The aspects set out above are clearly relevant and material to this application, yet nothing was said about them. The applicant has not filed any replying affidavit countering the above aspects. As such they still stand.

[36] His explanation, as stated above, cannot thus be full or reasonable.

[37] The situation is compounded by the fact that the applicant’s explanation is replete with unsupported and bald allegations.

[38] In Swissborough Diamond Mines v Government of the RSA[16] Joffe J stated the following:[17]

“It is trite law that in motion proceedings the affidavits serve not only to place evidence before the Court but also to define the issues between the parties. In so doing the issues between the parties are identified. This is not only for the benefit of the Court, but also, and primarily, for the parties. The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits.”

[39] In Hart v Pinetown Drive-Inn Cinema (Pty) Ltd[18] it was stated[19]as follows:

“… where proceedings are brought by way of application, the petition is not the equivalent of the declaration in proceedings by way of action. What might be sufficient in a declaration to foil an exception, would not necessarily, in a petition, be sufficient to resist an objection that a case has not been adequately made out. The petition takes the place not only of the declaration but also of the essential evidence which would be led at a trial and if there are absent from the petition such facts as would be necessary for determination of the issue in the petitioner's favour, an objection that it does not support the relief claimed is sound.”

[40] Joffe J proceeds in the same vein as follows:[20]

“An applicant must accordingly raise the issues upon which it would seek to rely in the founding affidavit. It must do so by defining the relevant issues and by setting out the evidence upon which it relies to discharge the onus of proof resting on it in respect thereof.”

[41] At paragraph 18 of the founding affidavit in support of the condonation application the applicant states that Van Schalkwyk

Attorneys requested iAfrica Transcribers to provide them with a quotation for a transcription of the judgment but were advised that it was their policy that copies of transcripts are only released after the applicable Judge had signed them.

[42] No date for this is provided and neither the request to iAfrica nor their response is annexed to the affidavit. That is in spite of the fact that the applicant talks about asking for a quotation but the response thereto speaks about the copy.

[43] At paragraph 8 the applicant speaks about having struggled to obtain advice from Mr Kerremans due to his regular travels abroad. Again, no details about what this means and when and where it took place is given.

[44] At paragraph 17 the applicant states that Charmain Gibbens Attorneys, who were Van Schalkwyk Attorneys’ correspondent

attorneys, could not obtain a typed copy of the judgment. No confirmatory affidavit from both Charmain Gibbens Attorneys or Van

Schalkwyk Attorneys is attached. It results in these allegations being hearsay and liable to be ignored in terms of the Law of Evidence Amendment Act.[21]

[45] Similarly, the following instance’s say-so has not been confirmed in or by confirmatory affidavits or in affidavits:

45.1 Graham Goodwin regarding paragraph 23; of the applicant’s founding affidavit;

45.2 Eugene Geyser regarding paragraphs 24 and 25; and

45.3 At least one of the two senior counsel allegedly having been briefed by the applicant.

[46] At paragraph 29 the applicant states:

“In the premises it is apparent that the applicant always intended to appeal the judgment and order in the main application and the failure to lodge an application for leave to appeal within the required 15 day period was not caused by any conduct or failure by the applicant.”

[47] I asked counsel for the applicant to sketch to this Court what steps the applicant took to address the “apparent lack of concern and/or diligence” by its attorneys. The response was neither here nor there. It was obvious that he was clutching at straws hereon.

[48] The question should then be : Whose fault is it?

[49] In Commissioner of Inland Revenue v Burger[22] the Appellate Division stated the following:

“The misunderstanding between the Commissioner and his attorney has not been satisfactorily explained. There is no express allegation that the attorney was to blame for the delay which took place and in the absence of an affidavit from the attorney we cannot assume that he is in any way to blame.”

[50] Counsel for the applicant argued that the applicant expressly blamed its attorneys for the mess : That may be so, however, in the absence of confirmatory affidavit(s) the allegation remain bland. The blame cannot be transferred to the attorneys.

[51] There was delay of 10 months before the applicant filed an application for leave to appeal. The condonation application

came in after 15 months. I have perused the applicant’s affidavit to glean what can be described as a reasonable explanation

for this. I could find none.

[52] The applicant has been aware of the judgment since it was handed down on 24 May 2013. Today it is 23 September 2014. It claims it all along intended to appeal it. Even if we give it the benefit of doubt, at the very least it became aware of the fact that an application for condonation for the late filing of the application for leave to appeal was necessary by 7 November 2013. That is more than 10 months ago, as at today and at least 9 months from the month same was done.

[53] By its own admission, the applicant was represented by three firms of attorneys and two senior counsel since the date of the judgment. I find it inconceivable that none of the above eminent persons would not have brought the need and duty to do the necessary about this aspect of leave to appeal and condonation for late filing thereof to its attention.

[54] In Saloojee and Another NNO v Minister of Community Development[23] the Appellate Division stated that –

“… a condonation of the non-observance of the Rules of this Court is by no means a mere formality. It is for the applicant to satisfy the Court that there is sufficient cause for excusing him from compliance …”

[55] From the totality of the evidence herein the applicant has not made out such a case. Counsel for the respondent submitted that –

“… it appears that the applicant considers condonation to be an entitlement …”[24]

The circumstances herein points to the respondent not being too far off the mark.

[56] As already quoted in paragraph [26] of this judgment, there is a limit beyond which a litigant can escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.

PREJUDICE

[57] Prejudice to the successful litigant and I dare-say, even the unsuccessful one is a major consideration that plays a part in the decision whether or not to grant condonation.

[58] In Van Wyk v Unitas Hospital[25] the Constitutional Court stated the following:

“There is an important principle involved here. An inordinate delay induces a reasonable belief that the Order had become unassailable.

This is a belief that the hospital entertained it and it was reasonable to do so. It waited some time before it took steps to recover its costs. A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice.”

[59] I agree with the above exposition. From the date the judgment was handed down on 25 May 2013 the applicant did nothing

indicative of someone seriously contemplating an appeal. It even started negotiating terms of paying off its debt with the

respondent. Counsel for the applicant argued that settlement negotiations are privileged occasions that should not be of any consequence in this application.

[60] I beg to differ.

[61] The letter written by Van Schalkwyk Attorneys dated 16 December 2013[26] is not marked “without prejudice”. This Court accepts that a qualified attorney knows the value of marking letters “Without Prejudice”. It goes without saying that communications, especially those in writing which do not have the disclaimer “Without Prejudice” should ordinarily or prima facie be deemed “With Prejudice” unless the opposite view is clear and unambiguous or is discernible from its contents. No such indication – that the letter was written “Without Prejudice” – is apparent from this letter. As such this Court accepts that it was “With Prejudice”. Consequently, this Court also accepts that the applicant attempted to negotiate a settlement with the respondent. As a result, it is my considered view and finding that the respondent was justified to believe, reasonably, that the judgment and order herein has become unassailable. Only when the applicant was not forthcoming with payment of the judgment debt did the respondent launch liquidation proceedings. Better still, the respondent gave the applicant timeous notice via his letter in terms of section 345 of the Old Companies Act and followed same with the liquidation application. The applicant also participated in the liquidation application by filing answering affidavits and engaging in all other processes relevant to preparation for trial.

[62] Throughout all of these, the applicant did not pursue any appeal against the judgment or rescission of the judgment. Only eight (8) days before the liquidation application was to be argued in court and when only heads of argument were to be settled did the applicant file the application for leave to appeal.

[63] Prima facie, there was an unreasonable delay in both the launching of the application for leave to appeal and the application for condonation.

REASONABLE PROSPECTS OF SUCCESS AT APPEAL

[64] The aspect that may redeem the applicant is whether or not he has reasonable prospects of success in the intended appeal.

[65] During their submissions in this condonation application both counsel did so by also dealing with this aspect – whether there are reasonable prospects of success on appeal.

[66] It is trite law that where there are reasonable prospects of success at the appeal being pursued, the courts usually will allow condonation for non-compliance with the Rules unless the non-compliance is of such a nature that it is gross.[27]

[67] The applicant submitted and argued that several factors were in favour of his appeal succeeding, stressing that the amount in dispute was not trifling, insisting that when the court considers this aspect of the matter, only the amount of the claim should be considered without having regard to the costs that the parties have already incurred.[28]

[68] The applicant further submitted that the following aspects were indicative of his case succeeding on appeal:

68.1 The amount in dispute, i.e. R2 800 000;

68.2 That the matter is of the utmost importance to Glen Afric, the applicant, the applicant;

68.3 That reasonable prospects of success and of another court coming to or arriving at a different conclusion from the one arrived at by this Court; and

68.4 That leave to appeal should be granted to the applicant to proceed with the appeal because the appeal entails legal questions which deserve the attention of the Supreme Court of Appeal.

[69] At the end of his argument, counsel for the applicant amended the last item above by submitting that should leave be granted, the appeal should be referred to a full bench of this Court.

[70] It is my considered view that the above grounds advanced by the applicant cannot by any stretch of the imagination be said to be strong or impressive, when regard is had to the circumstances in and/or of this matter : The applicant admits that the respondent made a payment of R2 800 000 pursuant to the deal pertaining to alienation of land between it and the applicant but avers that the money was paid to Ms Jennifer Mary Brooker, the wife of the sole shareholder of the applicant. He further alleges that the money was from Connolly Turner Bloodstock (Pty) Ltd and not from Mr Connolly personally, being the respondent herein.

[71] As the judgment testifies to, the applicant is trying to hide behind a straw in its bid to avoid liability for being enriched at the respondent’s expense. That in my view would amount to a gross injustice.

[72] It is my further view and finding that the applicant is trying every trick in the book to hide behind the so-called “corporate veil”. The facts and circumstances of this matter as well as the interests of justice and fairness militate against the above “defences” by the applicant availing him should the matter be allowed to go on appeal.

[73] The respondent is a private citizen pitted against a corporate entity. All that which the applicant is busy with is tantamount to delaying the finalisation of this matter through the leave to appeal process.

[74] It is so that for a court to pierce the veil of corporate personality, the facts and circumstances of the case require that no other (readily) available remedy is available.[29] As put in Atlas Marine Co SA v Avalon Maritime Ltd, The Coal Rose (No. 1)[30] –

“… To pierce the corporate veil is an expression that I would reserve for treating the rights or liabilities or activities of a company as the rights or liabilities of its shareholders …”

[75] The above regardless, I am persuaded as I was in the main application, that the order arrived at was justified and that the

piercing of the corporate veil was appropriate.

[76] The applicant also relied on an alleged dispute of fact arising from the maxim to the effect that payment to or settlement with an agent will operate as a discharge of liability to the principal only if the agent is authorised to receive payment on behalf of the principal.[31]

[77] It deserves mention here that Ms Brooker who received payment from the respondent’s side is the wife to Mr Brooker, the sole shareholder of the applicant.

[78] Despite admitting selling to the respondent the applicant is also hiding behind the following statement:

“Authority to sell does not necessarily include the authority to receive payment.”[32]

[79] All of the above equally cannot avail the applicant herein.

[80] Although I should not go deeper into the merits of the matter in spite of the parties, especially the applicant’s counsel

doing so, a genuine dispute of facts is far-fetched in this matter.

[81] Equally, in this application for condonation it is my finding that it is not necessary to go deeper into the aspects, as submitted and argued on behalf of the applicant, as to how this Court erred. I stand by the reasons set out in my judgment of 25 May 2013.

[82] Consequently, the application for condonation falls to be dismissed with costs.

CONCLUSION

[83] The applicant’s progression through to the argument of the application for leave to appeal depended on this Court granting

condonation to it for its late filing of the application for leave to appeal. Once the condonation is refused, the shadow brought about by the leave to appeal proceedings should be lifted. The respondent’s further steps forward should not be hampered by the automatic suspension of execution of the judgment. He equally should not be burdened with the duty of applying to execute the judgment.

[84] As such the application for leave to appeal stands to be struck off the roll. This would be in the execution of the court’s mandate and even to grant further and/or alternative relief as the court deems just.

COSTS

[85] The applicant did not include a prayer for costs in both its Notice of Motion as well as its heads of argument. On the other hand, the respondent asked that the applications for condonation and for leave to appeal be dismissed with costs on a punitive scale. However during argument of this matter it appears as if the respondent is not persisting with a prayer for a punitive costs order. In fact counsel for the respondent did not make specific submission in relation to costs being on a punitive scale.

[86] The issue of costs is the prerogative of the court hearing the matter. Such a discretion should be exercised judicially and

properly. The general rule is that costs follow the suit. If a party wishes to deviate from this general rule, it (party)

should state as much during the hearing.

[87] After considering this matter in the light of the totality of the circumstances herein, it is my finding that a costs order on a scale as between party and party is the costs order that should accompany the orders herein.

ORDER

[88] The following orders are made:

“1. The application for the condonation for the late filing of the application for leave to appeal is dismissed with costs.

2. The applicant’s application for leave to appeal is struck off the roll with costs.”

N F KGOMO

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

FOR THE APPLICANT ADV D B DU PREEZ SC

INSTRUCTED BY GEYSER ATTORNEYS

c/o MOODIE & ROBERTSON

BRAAMFONTEIN

JOHANNESBURG

TEL NO: (011) 682 8600

FOR THE RESPONDENT

INSTRUCTED BY F J COHEN ATTORNEYS

BRAMLEY GARDENS

TEL NO: (011) 786 9233

DATE OF HEARING 22 SEPTEMBER 2014

DATE OF JUDGMENT 23 SEPTEMBER 2014

[1] Rule 49(1)(b) of the Uniform Rules of Court.

[2] Rule 27(1).

[3] SA Shipping Co Ltd v Liquidators Promoters Ltd 1918 CPD 606; Yunnan Engineering CC v Chater 2006 (6) SA 571 (T) at 578H-J.

[4] Van Loggerenberg et al, Erasmus Superior Court Practice, Main Volume, p 360.

[5] Melanie v Santam Insurance Co Ltd 1962 (4) SA 531 (A); Belo v Commissioner of Child Welfare, Johannesburg [2002] All SA 286 (W) at 290f-g.

[6] Kgobane v Minister of Justice 1969 (3) SA 365 (A); Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 125 (A); Moraliswane v Mamili 1989 (4) SA 1 (A); Blumenthal v Thomson [1993] ZASCA 190; 1994 (2) SA 118 (A) at 121I-122B; Napier v Tsaperas 1995 (2) SA 665 (SCA) at 671C-D; Darries v Sheriff, Magistrate Court Wynberg 1998 (3) SA 34 (SCA) at 41C-D; Byron v Duke Inc 2002 (5) SA 483 (SCA) at 487H-J; Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B.

[7] United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720E-F; Rose v Alpha Secretaries Ltd 1947 (4) SA 511 (A) at 518-519; Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (A) at 23; Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A).

[8] Salojee & Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C.

[9] Para 9 of Applicant’s Heads of Argument.

[10] Supra at 141.

[11] Rule 49(11) of Uniform Rules of Court.

[12] Meskin, Henochsberg on the Companies Act, Vol 1, p 694.

[13] Tucker’s Land & Development Corporation (Pty) Ltd v Soja (Pty) Ltd 1980 (3) SA 253 (W) at 256-258.

[14] [2007] ZACC 24; 2008 (2) SA 472 (CC).

[15] At para [22].

[16] 1999 (2) SA 279 (T).

[17] At 323-324.

[18] 1972 (1) SA 464 (D).

[19] At 469C-E.

[20] Loc cit.

[21] The Law of Evidence Amendment Act 45 of 1988.

[22] Supra at p 449C.

[23] Supra at 138H.

[24] Respondent’s Heads of Argument, page 9 paragraph 29.

[25] Supra at para [31]. See also Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd 2012 (2) SA 637 (CC) at para [16].

[26] Folio 16. Annexure JC5, as attached to the respondent’s Answering Affidavit regarding the condonation application.

[27] Afrikaanse Pes Bpk v Olivier 1949 (2) SA 890 (O) at 892-893; Derby-Lewis v Chairman, Committee on Amnesty, Truth and Reconciliation Commission 2002 (3) SA 485 (C); Botes v Nedbank Ltd 1983 (3) SA 27 (A); R v Baloi 1949 (1) SA 523 (A).

[28] Haine v Podlashue 1937 TPD 227 at 228; African Guarantee & Indemnity Co Ltd v Van Schalkwyk & Others 1956 (1) SA 326 (A) at 329B-C; Kathrada Bros v Findlay & Sulliman 1938 NPD 321.

[29] Hülse-Reuter v Gödde 2001 (4) SA 1336 (SCA); Botha v Van Niekerk 1983 (3) SA 513 (W).

[30] [1991] All ER 769 (CA) 779; Botha v Van Niekerk (supra).

[31] Seider v Neumann 1944 SR 27 at 29; Baker v Probert 1985 (3) SA 429 (A) at 438H-I; Silke, De Villiers & Macintosh, The Law of Agency in South Africa, 3rd Ed, Article 73 at p 516.

[32] Applicant’s Heads of Argument, p 17 para 35; See also Tank v Jacobs (1881) 1 SC 289 at 290; Roberts v Bryer Bros 1931 OPD 107 at 109; Glasson v Pierce Real Estate (Pty) Ltd 1969 (3) SA 113 (D).