Harnwell v Harnwell (342/2018) [2021] ZAECGHC 69 (27 July 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 342/2018

Date heard: 07 July 2021

Date delivered: 27 July 2021

In the matter between:

CAROL

ANN HARNWELL

Applicant

(Respondent in Application for Leave to Appeal)

and

MARK

HARNWELL

Respondent

(Applicant in Application for Leave to Appeal)

APPLICATION

FOR LEAVE TO APPEAL

JUDGMENT

LOWE, J:

INTRODUCTION

[1] In this matter I heard extensive argument from the parties in an application for Respondent’s committal for contempt of Court, delivering my written judgment, and order, on 12 November 2020, as a matter of some urgency. I shall refer to the parties as they were in the main application.

[2] I granted the contempt application with costs, by way of a coercive order.

[3] Respondent (as Applicant) seeks leave to appeal against my order, his application many months out of time.

[4] Having heard full argument, on the application for condonation and leave, I reserved my judgment.

[5] At all times Respondent appeared in person.

[6] The papers are lengthy – the original application 422 pages in length and the application for leave and condonation 184 pages.

THE

ESSENCE

[7] My judgment sets out the background to this matter, in detail, and the reasons for granting the application.

[8] In essence Respondent argues that I erred on the facts in various respects and that he should be given leave to appeal.

[9] It was however necessary for Respondent to seek condonation for the delay of many months in bringing his application for leave to appeal. This was fully explained in his lengthy application and was vigorously opposed by Applicant.

THE

CONDONATION APPLICATION

[10] The principles to be applied in condonation applications are well known.

[11] The Court has a discretion which must be exercised judicially on the facts of each case, it being in essence a matter of fairness to each side. This discretion is to be exercised in accordance with the relevant principles – but the discretion is extensive.

[12] The factors relevant are not individually decisive but should be viewed cumulatively and weighed, the one against the other. For example good prospects of success may compensate for a weaker explanation or vice versa.

[13] The factors relevant may be summarised as follows and include:

[13.1] The degree of non-compliance;

[13.2] The explanation for it;

[13.3] The importance of the case;

[13.4] Whether the fault was that of the client or his legal team;

[13.5] Respondent’s interest in finality;

[13.6] The convenience of the Court;

[13.7] The nature and purpose of the remedy sought;

[13.8] The avoidance of unnecessary delay in the administration of justice;

[13.9] The prospects of success[1].

[14] I accept that where the rule breach is unacceptable and wanting (egregious) the prospects will usually not save the day[2].

[15] Prospects however are a relevant factor[3].

[16] This matter was heard on 5 November 2020 and judgment was handed down a few days later on 12 November 2020.

[17] The Application for leave to appeal was lodged on 18 May 2021, and the parties having had difficulty in finding a common date, the matter was argued on 7 July 2021.

[18] The delay was thus in the region of some five months. In essence Respondent, a layperson, relies on the fact that he had a number of major life events one after the other which led to clinical depression and more recently the need for treatment on admission for a period under medical supervision. There can be no real dispute as to the above, and Respondent’s stress and depression no doubt deserves to be given weight.

[19] In short in the circumstances and notwithstanding vigorous opposition, I am inclined to accept that the question of condonation ultimately turns on the prospect of success issue. If there is a reasonable prospect that another court would find for Respondent, I would be inclined to grant leave. If not it should be refused.

THE

TEST ON WHETHER LEAVE TO APPEAL SHOULD BE GRANTED

[20] I have given careful consideration to the principles, which are applied by our courts in respect of applications for leave to appeal and particularly in terms of Section 17(1) of the Superior Courts Act 10 of 2013 and the slightly changed onus or level that has to be applied thereto as has been suggested in a number of cases particularly in the Labour Court[4].

[21] I wish to make it clear however that I have applied the present test hereto and that is whether there is a reasonable prospect that another court would come to a different conclusion than did I.

[22] I have also had careful regard to the decision in the Supreme Court of Appeal, Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others[5], a judgment given on the 15 March 2016 in which Wallis JA dealt with an application for leave to appeal, commenting on appeals in which there is a particularly important matter to be decided, that is a matter of public importance. At paragraph [23] he outlined the basis underlying what he said in paragraph [24], which I intend to quote selectively, and it was against this background that it was suggested that in that matter jurisprudence should have been considered as a guide to whether, notwithstanding the High Court’s view in that matter as to the prospects of success, leave to appeal should have been granted, having regard to the importance of the matter to various parties and the public.

[23] His Lordship said as follows at paragraph [24]:

“That is not to say that merely because the High Court determines an issue of public importance it must grant leave to appeal. The merits of the appeal remain vitally important and will often be decisive.”

THE

PROSPECTS OF SUCCESS

[24] In the application for leave Mr Harnwell urges upon me that I erred factually. He stated in argument, fairly however, that this was also due to his position as a layperson in drafting and arguing the matter.

[25] I am not certain that Respondent fully understands the nature of an appeal and it seemed, as suggested by Mr Beyleveld SC for Applicant, that Respondent thought it was more than simply an appeal on the record.

[26] However that may be, the question remains as to whether there is a reasonable prospect that another Court would come to a different decision than I did on the papers as they were before me.

[27] As to the legal position, I set this out very fully in my judgment and there is no criticism thereof by Respondent.

[28] The recent Constitutional Court decision in Secretary of this Judicial Commission into Allegation of State Capture Corruption and Fraud in the Public Section including Organs of State v Zuma & 2 Others [6] confirms the legal position particularly as to Pheko and Others v Ekurhuleni City [7] and Fakie NO v CCII Systems (Pty) Ltd [8].

[29] The primary issue here is whether Respondent was in contempt of Court[9].

[30] The test and evidentiary burden I applied accords with the legal position to date. Wilfulness and mala fides in my view remain, in this matter, remains the central issue.

[31] These are presumed unless Respondent discharges the evidentiary burden to establish a reasonable doubt[10].

[32] I applied the usual coercive order and not a “punitive order”.

[33] As I have said, Respondent argued that I erred on the facts.

[34] I have carefully analysed each criticism and find there to be merit in only one of the grounds advanced. The grounds are mainly divided into the following categories:

[34.1] That his house was not capacious. This is a two bedroom house occupied by Respondent and his two sons – clearly sufficiently capable thereof.

[34.2] That I misdirected myself on the business state and income. On what was before me there is no prospect that another Court would differ on this in my view.

[34.3] That I misjudged Applicant’s income and expenditure. Again on what was before me this is, in my view, not likely to be seen differently by another Court. At the end of the day Respondent decided mero motu to cease all payments to Applicant in circumstances where it was clear, on the papers, that he was able to afford at least something in this regard. He himself in fact said that he could tender R1,000.00 but even this he failed to pay, clearly indicative of his wilfulness and mala fides.

[34.4] Finally the question of the value of Respondent’s home fell to be considered. It is here that I erred. Mr Beyleveld SC for Applicant submitted in his heads[11]:

“27. He also owns immovable property which according to a valuation he received from IPC Independent Property Consultants is valued at R875 000.00.”

[35] This I referred to in my judgment as follows[12]:

“[57] Respondent’s immovable property referred to above is value at R875,000.00 with an outstanding bond of R521,643.78 (or lesser sum), there being therefor more than sufficient equity to comply with the Court order.”

[36] In fact both Mr Beyleveld SC and I overlooked that the valuation of Respondent’s home is not what the supporting annexure adverts to being 7 Cove Lane, Port Alfred.

[37] In fact Respondent’s home, he argued, is valued at something in the region of R530,000.00.

[38] The value of the house is then only a little more than the bond thereon, with at best a small amount of equity therein.

[39] In my view, whilst this was indeed incorrect, the Respondent was nevertheless clearly wilfully and mala fide in breach, and it was only the extent of his ability to pay, at least part of the sum due, that remained in issue.

[40] Nevertheless, this matter warrants reconsideration by another Court, as one must conclude that there is a reasonable prospect that another Court would reach a different conclusion, should it give more weight to the property valuation issue than did I, and should it find this to be a crucial issue.

[41] Having regard to the importance of this matter to Respondent (being a coercive order) and also impacting the arrears, it would be just and equitable to grant leave to appeal to a Full Bench of this Court.

[42] The issue of condonation must be judged in the light hereof and condonation should be granted.

ORDER

[80] Accordingly, it is ordered that:

1. Respondent’s late filing of his Application for Leave to Appeal is condoned.

2. Respondent is afforded Leave to Appeal against the whole of my order and judgment of 12 November 2020 to the Full Bench of the Eastern Cape Division.

3. The costs relating to both the Condonation Application and the Application for Leave to Appeal will be costs in the Appeal.

M.J. LOWE

JUDGE

OF THE HIGH COURT

Obo Applicant: In Person

Obo Respondent:

Adv A Beyleveld SC

Instructed by:

Wheeldon Rushmere & Cole Attorneys, Grahamstown

[1] Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] 2 All SA 251 (SCA) [11]; Federated Employees Fire and General Insurance Co Ltd & Another v McKenzie 1969 (3) SA 360 (A) 362 F – G; Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi 2017 (6) SA 90 (SCA) [26]; Beira v Raphaely Weiner and Others [1997] ZASCA 59; 1997 (4) SA 332 (SCA); Darries v Sheriff, Magistrate's Court, Wynberg 1998 3 SA 34 (SCA) 40 – 41; Mtshali NO and Others v Buffalo Conservation 97 (Pty) Ltd (250/2017) [2017] ZASCA 127 (29 September 2017).

[2] Commissioner for the South African Revenue Service v Van der Merwe [2015] 3 All SA 387 (SCA).

[3] Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) [11].

[4] The Mont Chevaux Trust (IT 2012/28) v Goosen and 18 Others LCC14R/2014; Fair Trade Tobacco Association v President of the Republic of South Africa and Others (21688/2020) [2020] ZAGPPHC 311

[5] 2016 (3) SA 317 (SCA)

[6] [2021] ZACCZ CCT/52/21 29 June 2021.

[7] 2015 (5) SA 600 (CC)

[8] 2006 (4) SA 326 (SCA)

[9] See also Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018 (1) SA 1 (CC)

[10] Fakie [41] – [42]; Pheko II [36].

[11] Paragraph 27

[12] Paragraph [57]