Mathule v Kuisis and Another; In Re: Kuisis and Another v Free State Gambling, Liquor and Tourism Authority and Others (A118/2018) [2020] ZAFSHC 114 (25 June 2020)
- Citation
- [2020] ZAFSHC 114
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- JP Daffue, A K Ramlal
- Case number
- A118/2018
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- JP Daffue, A K Ramlal
- Case number
- A118/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court accepted the applicant's explanation for the late filing due to the national lockdown and granted condonation. However, after considering the merits, the court found no reasonable prospects of success on appeal. The allegations of fabrication and distortion of documents were not substantiated, and the fixture in question was shown to be illustrative rather than fraudulent. The grounds of appeal did not raise any new issues, and the findings in the original judgment remained unchallenged. Consequently, the application for leave to appeal was dismissed with costs.
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
Tsietsi Mathule
Applicant Counsel: Mr T MathuleBernard Peter Kuisis
Respondent Counsel: Adv I GoodmanErrol Martin Thomas
Respondent Counsel: Adv Mitchell03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 26 March 2020
04
Questions and positions
Legal issues
- 01
Whether condonation for the late filing of the application for leave to appeal should be granted in light of the national lockdown.
- 02
Whether there are reasonable prospects that another court would come to a different conclusion regarding the alleged fabrication and distortion of documents.
- 03
Whether the grounds of appeal relating to betting tickets and fixture documents raise new issues warranting consideration.
Party arguments
- Applicant
- The applicant, Mr Mathule, argued for condonation of the late filing of his application for leave to appeal, citing the national state of disaster and lockdown as the primary reasons for the delay. He alleged that the respondents relied on a fabricated fixture and distorted records to avoid liability, asserting that fraudulent documentation was used in the main application.
- Respondent
- The respondents opposed both the application for condonation and the leave to appeal, contending that no proper reasons for the delay were advanced. They denied any fabrication or distortion of records, explaining that the fixture attached was merely illustrative of a typical layout and not intended to mislead. They maintained that no fraud was committed and that there were no reasonable prospects of success on appeal.
05
Court’s reasoning
Legal principles
- 01
Superior Courts Act 10 of 2013
A stricter test for granting leave to appeal applies under section 17(1)(a)(i) of the Superior Courts Act, requiring a measure of certainty that another court would differ from the judgment appealed against.
- 02
Acting NDPP v Democratic Alliance (19577/09) [2016] ZAGPPHC 489 (24 June 2016)
Condonation for late filing may be granted in exceptional circumstances, such as the national lockdown, even in the absence of a formal application and reasons under oath.
06
Ratio, limits and disposition
Ratio decidendi
The court accepted the applicant's explanation for the late filing due to the national lockdown and granted condonation. However, after considering the merits, the court found no reasonable prospects of success on appeal. The allegations of fabrication and distortion of documents were not substantiated, and the fixture in question was shown to be illustrative rather than fraudulent. The grounds of appeal did not raise any new issues, and the findings in the original judgment remained unchallenged. Consequently, the application for leave to appeal was dismissed with costs.
Obiter and limits
- The court noted that fixtures change daily and the document attached was illustrative, not intended to mislead.
- The applicant's reliance on a different fixture in his answering affidavit undermined his allegations of fraud.
- No new issues emerged from the grounds of appeal, making it unnecessary to revisit previous findings.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
Source and reliance status
Free State High Court, Bloemfontein
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.
Free State High Court, Bloemfontein
Judgment
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case number: A118/2018
In the matter between:
TSIETSI MATHULE Applicant
and
BERNARD
PETER KUISIS 1st Respondent
ERROL
MARTIN THOMAS 2nd Respondent
(in the application for leave to appeal)
In Re:
BERNARD
PETER KUISIS 1st Applicant
ERROL
MARTIN THOMAS 2nd Applicant
FREE STATE GAMBLING, LIQUOR AND 1st Respondent
TOURISM
AUTHORITY
THE
CHAIRPERSON OF THE BOARD OF THE 2nd Respondent
FREE STATE GAMBLING, LIQUOR AND
JOJO
DANIEL FOKOU TCHINDA 3rd Respondent
TSIETSI MATHULE 4th Respondent
CORAM: DAFFUE, Jet RAMLAL, AJ
HEARD ON: 19 JUNE 2020
JUDGMENT BY: DAFFUE, J
DELIVERED ON: 25 JUNE 2020
[1] The applicant in this application for leave to appeal who was cited as 4th respondent in the main application is Mr Tsietsi Mathule. He drafted his own heads of argument and personally made oral submissions before us insofar as his erstwhile attorney withdrew as his legal representative.
[2] The application for leave to appeal is opposed by the two respondents who were the applicants in the main application.
[3] The parties shall be referred to as in the application for leave to appeal.
[4] Our judgment was delivered on 26 March 2020, setting a deadline of 20 April 2020 for the filing of any application for leave to appeal. The applicant's application for leave to appeal was filed on 29 May 2020 and is thus some 6 weeks late. There is no formal application for condonation, but applicant asked for condonation in his heads of argument and during the hearing. He relied in particular on the state of disaster and lockdown that came into effect the day after the judgment was delivered. The present respondents opposed the application for condonation and it was submitted on their behalf that no proper reasons for the delay were advanced. We decided to hear argument on the merits as well and having considered the totality of the arguments, I am of the opinion that even in the absence of a formal application for condonation and reasons under oath, the reasons for delay should be accepted based on the unusual situation that existed in this country from 27 March 2020 onwards.
[5] A stricter test for adjudicating applications for leave to appeal applies since the introduction of s 17(1)(a)(i) of the Superior Courts Act, 10 of 2013. The word "would" is indicative of a measure of certainty that another court will differ from the judgment appealed against. See: Acting NDPP v Democratic Alliance (19577/09) [2016] ZAGPPHC489 (24 JUNE 2016) at paragraph 25.
[6] Unlike his attorney's submissions in the main application, applicant emphasised in his written and oral arguments that respondents
allegedly relied upon a fabricated fixture in an attempt to mislead us and that they distorted the records in an attempt to avoid
liability. Although these allegations were made in the answering affidavit to the main application, Mr Litheko who appeared for the applicant in the main application did not seriously raise the issue of fabrication or distortion of records or any fraudulent behaviour. The alleged fraudulent document is the fixture attached as annexure "FAT' to the founding affidavit in the main application. It is evident from the document and explained in the founding affidavit that the particular fixture was compiled on 11 February 2015. It is also common cause that fixtures change on a daily basis. The two bookmakers, the respondents in this application, illustrated that this specific fixture was attached merely to provide a depiction of the general layout of a typical fixture. In my view no fabrication, distortion or fraud has been shown and there is no reasonable possibility that another court will come to a different conclusion. It is in any event evident from the record that applicant attached a document as annexure "TMA" to his answering affidavit on which he allegedly relied in order to place his bets, but when Rule 35(12) procedure was utilised, he produced a totally different fixture than the one relied upon in responding to the application. In reply, the present respondents stated that the document attached to the answering affidavit was inauthentic and unreliable.
[7] It is deemed unnecessary to consider the further grounds of appeal and arguments pertaining to the betting tickets. No new issues that need to be considered emerged. It is unnecessary to repeat any of the findings in our judgment and I merely refer to paragraphs 13 to 28 thereof.
[8] I align myself with the submissions in paragraphs 12 to 29 of the respondents' heads of argument and the oral submissions of counsel. There are no reasonable prospects of success on appeal.
[9] Consequently the following order is made:
The application for leave to appeal is dismissed with costs.
______
JP DAFFUE, J
I concur
A K RAMLAL, AJ
On behalf of Applicant: Mr T MATHULE in his personal capacity
(4th Respondent in the main application)
On behalf of Respondents: Advv I Goodman and Adv Mitchell
(Applicants in the main application)
Instructed by: EDWARD NATHAN SONNENBERGS
c/o MelNTYRE & VAN DER POST
BLOEMFONTEIN
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