Kelu and Family Wholesalers and Retail CC v AFHCO Holdings (Pty) Limited (092411/2024) [2024] ZAGPJHC 1060 (22 October 2024)
The court found that the applicant failed to demonstrate urgency in its application and would have substantial redress at a hearing in due course. The previous error of dismissing the application, rather than striking it for lack of urgency, was acknowledged. However, given the applicant's submissions regarding...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 1060
- Parties
- Applicant: Kelu & Family Wholesalers & Retail CC; Respondent: AFHCO Holdings (Pty) Limited
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 092411/2024
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Urgent Application
- Outcome
- Leave to appeal granted to the Full Court; costs reserved.
- Judges
- Mahomed
- Legal Topics
- Urgency, Stay of Execution, Leave to Appeal, Costs Orders
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kelu & Family Wholesalers & Retail CC
Applicant
AFHCO Holdings (Pty) Limited
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Urgent Application
Legal Issues
- 1 Whether the applicant demonstrated sufficient urgency to justify the urgent application.
- 2 Whether the dismissal of the urgent application was a final order warranting leave to appeal.
- 3 Whether the applicant has prospects of success on appeal regarding urgency and costs.
Ratio Decidendi
The court found that the applicant failed to demonstrate urgency in its application and would have substantial redress at a hearing in due course. The previous error of dismissing the application, rather than striking it for lack of urgency, was acknowledged. However, given the applicant's submissions regarding urgency, costs, and prospects of success, and in the interests of justice, the court granted leave to appeal to the Full Court. Costs of the application for leave to appeal were reserved, pending the outcome of the recission application.
Court Disposition
Leave to appeal granted to the Full Court; costs reserved.
Orders
- The applicant is granted leave to appeal to the Full Court of this Division.
- Costs of the application for leave to appeal are reserved, pending the recission application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
Case Number 092411/2024
In the matter between:
KELU & FAMILY WHOLESALERS & RETAIL CC Applicant And AFHCO HOLDINGS (PTY) LIMITED Respondent
JUDGMENT- LEAVE TO APPEAL
MAHOMED AJ
[1] At the hearing of this matter for leave, I referred counsel to paragraph 12 of the judgment I handed down on 9 September 2024 in the urgent court. I am of the view that the applicant failed to demonstrate that it would not enjoy substantial redress at a hearing in due course, it accordingly failed on urgency. I however made the error of dismissing the application, rather than to have struck it for lack of urgency.
[2] Rule 42 of the Rules of Court permits a court to correct its errors without impacting on the sense and substance of the judgment. Counsel for the applicant, Adv Khumalo, was of the view that, for as long his application for leave is filed, the court cannot resort to Rule 42 as the judgment is final. Counsel for the respondent, Adv Fine, contended that the respondent agreed to the recission, due to the heavy court rolls, it was in the interest of both parties to expedite maters. Counsel held the view that the court could amend the order to read “struck for lack of urgency” and the applicant needed simply to withdraw the application for leave.
[3] Adv Khumalo submitted that the court was incorrect on the law, the facts and the evidence, his client was ordered to pay the costs, based on the court’s findings. He submitted that a stay of a warrant by its nature was urgent, the applicant ought to have succeeded on urgency. Counsel submitted that the test of a stay of execution required a court to consider only if the underlying causa was in dispute, the applicant satisfied the requirement for a stay of a writ, the underlying cause was disputed, “the scales tip in favour of the applicant”. It was further contended that the applicant has prospects of success and meets the requirements for leave as set out in s17 of the Superior Courts Act 10 of 2023.
[4] Adv Khumalo contended that the dismissal was a final order and therefor the applicant should be granted leave to appeal.
[5] It is in the interest of justice that the applicant be permitted a hearing regarding the issue of both urgency and costs, I ordered costs on the basis of my findings at paragraphs 8 ,11 and 12 of the judgment, and I held the view that the applicant would be enjoy substantial redress at a hearing in due course, it had failed to prove the matter was urgent.
Order
[6] Accordingly, I make the following order:
1. The applicant is granted leave to appeal to the Full Court of this Division.
2. Costs of the application for leave to appeal are reserved, given that the recission application is to be heard.
Date of Hearing: 21 October 2024
Date of Judgment; 22 October 2024.
Appearances
For applicant: Adv Khumalo
Instructed by: Dlamini Legal Inc.
For Respondent: Adv V. Fine
Instructed by: Mervyn Joel Smith Attorneys