Plexiphon 115 CC v Parys-Aan-Vaal Woonstelle (Pty) Ltd and Another (3489/2021) [2022] ZAFSHC 47 (8 March 2022)
The court found that the delay in filing the respondent's written heads of argument was minimal, the explanation for the delay was adequate, and no prejudice was suffered by the applicant. Therefore, condonation was granted. However, the grounds for appeal merely repeated arguments already considered and rejected in...
Source-derived case information.
- Citation
- [2022] ZAFSHC 47
- Parties
- Applicant: Plexiphon 115 CC; Respondent: Parys-Aan-Vaal Woonstelle (Pty) Ltd; Respondent: Robfair Investments No. 162 CC
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- 3489/2021
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Eviction Judgment
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- NS Daniso
- Legal Topics
- Leave to Appeal, Eviction Proceedings, Condonation of Late Filing, Lease Cancellation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Plexiphon 115 CC
Applicant
Parys-Aan-Vaal Woonstelle (Pty) Ltd
Respondent
Robfair Investments No. 162 CC
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Judgment
Legal Issues
- 1 Whether condonation should be granted for the late filing of the respondent's written heads of argument.
- 2 Whether the application for leave to appeal against the eviction judgment has reasonable prospects of success.
- 3 Whether there is a compelling reason for the appeal to be heard.
Ratio Decidendi
The court found that the delay in filing the respondent's written heads of argument was minimal, the explanation for the delay was adequate, and no prejudice was suffered by the applicant. Therefore, condonation was granted. However, the grounds for appeal merely repeated arguments already considered and rejected in the main eviction application. The court was not persuaded that the issues raised had reasonable prospects of success or that there was any compelling reason for the appeal to be heard. Accordingly, 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 to the full bench of this division against the judgment granted on 20 January 2022 is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case number: 3489/2021
In the matter between:
PLEXIPHON 115 CC
Applicant
and
PARYS- AAN- VAAL WOONSTELLE (PTY) LTD 1st Respondent
ROBFAIR INVESTMENTS No. 162 CC
2nd Respondent
HEARD ON: This application was determined on the basis of written arguments instead of an oral hearing. WRITTEN HEADS OF ARGUMENT DELIVERED ON 18 & 22 FEBRUARY 2022
JUDGMENT BY: DANISO, J
DELIVERED ON: This judgment was handed down electronically by circulation to the parties' representatives by email and by release to SAFLII. The date and time for hand-down is deemed to be 09H00 on 08 March 2022.
[1] The applicant seeks leave to appeal the judgment and the orders made on 20 January 2022 in the eviction application (âmain applicationâ) in terms of which the respondentsâ in limine challenge against the validity of the applicantâs answering affidavit was upheld with the result that an order upholding the cancellation of the partiesâ lease agreement was confirmed and the applicant was ordered to vacate the leased premises by 28 February 2022.
[2] In the main application the applicant was cited as the respondent and the respondents herein were the applicants. For the purpose of convenience, I shall refer to the parties as they are referred to in the main application.
[3] The respondentâs notice of application for leave to appeal was filed with the Registrar on 10 February 2022. On 15 February 2022 the parties were directed to submit written heads of arguments for the matter to be determined on the basis of written heads. The respondentâs written heads of argument were due on or before 17 February 2022 but only filed a day later on 18 February 2022. In the respondentâs heads of argument an order condoning the late filing of the written heads is sought. The condonation application is unopposed by the applicants.
[4] The period of delay in delivering the written heads is not excessive, the explanation for the delay has been fully and sufficiently given and no prejudice has been indicated by the applicants therefore I hold that there is sufficient cause warranting the court applying its discretion in the respondentâs favour. It is also in the interests of the applicants as well that this matter is progressed. Condonation for the late filing of the respondentâs written heads of argument is hereby granted.
[5] The background facts of this matter are illustrated in the main judgment, paragraph 1 to 3 thereof. I therefore deem it unnecessary to repeat them in this judgment.
[6] In the grounds of appeal including the heads of argument the respondent has regurgitated the arguments presented in the main application. The reasons for my conclusions in this regard are illustrated in my written judgment and having regard to what is deliberated in the judgment, Iâm not persuaded that the issues raised by the respondent in its grounds of appeal would have reasonable prospects of success. There is also no compelling reason why the appeal should be heard. The respondentâs application for leave to appeal stands to be dismissed.
[7] In the result the following order is made:
1. The application for leave to appeal to the full bench of this division against my judgment granted on 20 January 2022 is dismissed with costs.
NS DANISO, J
APPEARANCES:
Counsel on behalf of Applicant: Adv. J. Ferreira
Instructed by: Bezuidenhouts Inc
BLOEMFONTEIN
Counsel on behalf of Respondents:
Adv. GSJ van Rensburg
Instructed by: Symington & De Kok Attorneys