Pogostich Business Brokers (Pty) Ltd and Another v Mcleod and Another (247/06) [2006] ZASCA 110; [2006] SCA 136 (RSA) (21 November 2006)

Pogostich Business Brokers (Pty) Ltd and Another v Mcleod and Another (247/06) [2006] ZASCA 110; [2006] SCA 136 (RSA) (21 November 2006)

The court found that the applicants, after noting the appeal, deliberately elected to abide by the adverse judgment and took no steps to prosecute the appeal for more than eight months. No satisfactory explanation was provided for the delay, and the applicants' correspondence indicated a conscious decision not to proceed. The court held that, in line with established principles, the mere fact that the correctness of the decision may be open to debate is not sufficient ground to reopen the dispute. The application for reinstatement of the appeal was therefore refused.

Citation
[2006] SCA 136 (RSA)
Parties
Appellant: Pogostich Business Brokers (Pty) Ltd; Appellant: Colin Fenn; Respondent: Kenneth McLeod; Respondent: Ryan McLeod
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 November 2006
Case Number
247/06
Procedural Posture
Civil Appeal / Application for Reinstatement of Lapsed Appeal
Outcome
Application for reinstatement of the appeal refused with costs.
Judges
Zulman, Streicher, Cameron, Navsa, Theron
Legal Topics
Condonation, Lapsed Appeal, Failure to Prosecute, Reinstatement of Appeal
Civil Procedure Condonation Lapsed Appeal Failure to Prosecute Reinstatement of Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Pogostich Business Brokers (Pty) Ltd

Appellant

Colin Fenn

Appellant

Kenneth McLeod

Respondent

Ryan McLeod

Respondent

Procedural Posture

Civil Appeal / Application for Reinstatement of Lapsed Appeal

Legal Issues

  1. 1 Whether the appeal should be reinstated after it lapsed due to failure to lodge the appeal record timeously.
  2. 2 Whether the applicants have shown sufficient cause for condonation of the late lodging of the record.
  3. 3 Whether the deliberate election to abide by the adverse judgment precludes reinstatement of the appeal.

Ratio Decidendi

The court found that the applicants, after noting the appeal, deliberately elected to abide by the adverse judgment and took no steps to prosecute the appeal for more than eight months. No satisfactory explanation was provided for the delay, and the applicants' correspondence indicated a conscious decision not to proceed. The court held that, in line with established principles, the mere fact that the correctness of the decision may be open to debate is not sufficient ground to reopen the dispute. The application for reinstatement of the appeal was therefore refused.

Court Disposition

Application for reinstatement of the appeal refused with costs.

Orders

  • The application for reinstatement of the appeal is refused with costs.