Van der Heever N.O and Others v Smith and Another (925/2003) [2006] ZANWHC 55 (1 September 2006)

Van der Heever N.O and Others v Smith and Another (925/2003) [2006] ZANWHC 55 (1 September 2006)

The court found that there are substantive reasons to grant condonation for the respondent's late filing of the application for leave to cross-appeal. Both the applicants and the respondent raised issues of sufficient complexity and importance that another court could reasonably reach a different conclusion. Accordingly, leave to appeal and leave to cross-appeal were granted to both parties. The costs of the condonation application were awarded to the respondent on an unopposed basis, and the costs of the applications for leave to appeal and cross-appeal were ordered to be costs in the appeal and cross-appeal.

Citation
[2006] ZANWHC 55
Parties
Applicant: Theodor Wilhelm v/d Heever, N.O.; Applicant: Enver Mohammed Motala, N.O.; Applicant: Jayant Dalji Pema, N.O.; Respondent: Frederik Jacobus Smith
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
1 September 2006
Case Number
925/2003
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Condonation
Outcome
Leave to appeal and leave to cross-appeal granted; condonation for late filing granted; costs orders made as specified.
Judges
A A Landman
Legal Topics
Leave to Appeal, Condonation, Late Filing, Costs Order
Civil Procedure Leave to Appeal Condonation Late Filing Costs Order

Case Brief

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Parties

Theodor Wilhelm v/d Heever, N.O.

Applicant

Enver Mohammed Motala, N.O.

Applicant

Jayant Dalji Pema, N.O.

Applicant

Frederik Jacobus Smith

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Condonation

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the respondent's application for leave to cross-appeal.
  2. 2 Whether leave to appeal should be granted to the applicants and respondent.
  3. 3 Whether the costs of the condonation application should be awarded on an unopposed basis.

Ratio Decidendi

The court found that there are substantive reasons to grant condonation for the respondent's late filing of the application for leave to cross-appeal. Both the applicants and the respondent raised issues of sufficient complexity and importance that another court could reasonably reach a different conclusion. Accordingly, leave to appeal and leave to cross-appeal were granted to both parties. The costs of the condonation application were awarded to the respondent on an unopposed basis, and the costs of the applications for leave to appeal and cross-appeal were ordered to be costs in the appeal and cross-appeal.

Court Disposition

Leave to appeal and leave to cross-appeal granted; condonation for late filing granted; costs orders made as specified.

Orders

  • Leave to appeal is granted to the applicants against the portions of the judgment specified in the notice dated 4 May 2006 to a full bench of this division.
  • Condonation is granted for the late filing of the respondent's application for leave to cross-appeal.