Grobler v Vermaak (40234/2015) [2016] ZAGPPHC 537 (24 June 2016)
- Citation
- [2016] ZAGPPHC 537
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- AC Basson
- Case number
- 40234/2015
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- AC Basson
- Case number
- 40234/2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to advance a reasonable explanation for her default and did not present a bona fide defence with prospects of success. The applicant did not diligently pursue the rescission application, with more than three years elapsing before the matter was finally heard, and the delays were largely unexplained and unacceptable. The applicant's attempt to shift responsibility for the delays onto her attorneys was rejected. The court concluded that the applicant was the author of her own misfortune and that there were no reasonable prospects of success on appeal.
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
IJ Grobler
Applicant Counsel: Adv. J F WinnertsC Vermaak
Respondent Counsel: Adv. A Greylin03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Refusal of Rescission
04
Questions and positions
Legal issues
- 01
Whether the applicant provided a reasonable explanation for her default.
- 02
Whether the applicant advanced a bona fide defence with prospects of success.
- 03
Whether the delay in bringing the rescission application was reasonable.
- 04
Whether there are reasonable prospects of success on appeal.
Party arguments
- Applicant
- The applicant contended that the delays in bringing the rescission application were attributable to her attorneys and not to her own conduct. She argued that she had a bona fide defence and that the application for rescission should not be dismissed due to procedural delays.
- Respondent
- The respondent argued that the applicant failed to take responsibility for the delays, which were excessive and largely unexplained. The respondent maintained that the applicant did not advance a reasonable explanation for her default nor a bona fide defence with prospects of success, and that the application for rescission was not pursued diligently.
05
Court’s reasoning
Legal principles
- 01
Common law
A rescission application must be brought within a reasonable time after judgment, even though the common law does not prescribe specific timeframes.
- 02
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)
An applicant must provide a reasonable explanation for default and advance a bona fide defence with prospects of success to succeed in a rescission application.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to advance a reasonable explanation for her default and did not present a bona fide defence with prospects of success. The applicant did not diligently pursue the rescission application, with more than three years elapsing before the matter was finally heard, and the delays were largely unexplained and unacceptable. The applicant's attempt to shift responsibility for the delays onto her attorneys was rejected. The court concluded that the applicant was the author of her own misfortune and that there were no reasonable prospects of success on appeal.
Obiter and limits
- Although the common law does not prescribe timeframes for rescission applications, they must be brought within a reasonable time after judgment.
- Responsibility for procedural delays cannot be shifted entirely onto legal representatives; litigants must act diligently.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
24/6/2016
CASE NO: 40234/2015
Reportable: no
Of interest to other judges: no
Revised
In the matter between:
IJ GROBLER Applicant
(In the application for leave to appeal)
and
C VERMAAK Respondent
JUDGMENT
(Application for leave to appeal)
AC BASSON. J
[1] This is an application for leave to appeal against my judgement and order refusing recission of a judgment granted against the applicant (the defendant in the main application) on 16 August 2012.
[2] I do not intend repeating the reasons for my judgment as they are fully recorded in the judgment handed down on 18 May 2016. Suffice to point out that this court concluded that the applicant had failed to advance a reasonable explanation for the default and secondly that she did not advance a bona fide defence which prima facie has prospects of success.
[3] The court also held that the applicant did not diligently pursue the recission application to finality and that almost three years had lapsed before the recission application finally served before this court. Two recission applications were filed. The first recission application was withdrawn two years after the recission application was filed. After the withdrawal of the first recission application the applicant waited for more than a year to file the second recession application. The applicant simply refuses to accept any responsibility for these delays and continues to place the blame on her attorneys. Although it is accepted that the common law does not prescribe timeframes within which a rescission should be brought, it is accepted that such an application should be brought within a reasonable time after judgement. In the present matter more than three years have lapsed since the judgement was granted before the (second) recission application was finally heard. This time period is marred by numerous unacceptable and largely unexplained delays. The court consequently concluded on the facts that the applicant is the author of her own misfortune.
[4] I have considered whether an appeal would have reasonable prospects of success. I am not persuaded that there exist reasonable prospects of success on appeal.
[5] In the event the following order is made:
The application for leave to appeal is dismissed with costs.
_______
AC
BASSON
JUDGE
OF THE HIGH COURT
Appearances:
For the applicant : Adv. J F Winnerts
Instructed by : Bornman Snyman & Barnard Attorneys
For the Respondent : Adv. A Greylin
Instructed by : Spies Bester Potgieter Attorneys
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