Van Wyk v Bester NO (2845/2012) [2015] ZAECGHC 68 (23 June 2015)

Van Wyk v Bester NO (2845/2012) [2015] ZAECGHC 68 (23 June 2015)

The court found that the applicant had provided a satisfactory explanation for her late filing and demonstrated good cause for her default. Furthermore, the applicant's founding affidavit in the rescission application established a strong bona fide defence, specifically that she had paid a substantial portion of the purchase price. The court held that there are reasonable prospects that another court may find that the strength of the applicant's defence compensates for the lack of a reasonable explanation for her default. Accordingly, the court granted condonation for the late filing and leave to appeal to the Full Bench.

Citation
[2015] ZAECGHC 68
Parties
Applicant: Gesin Dorothea Van Wyk; Respondent: Andries Andriaan Bester NO
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
23 June 2015
Case Number
2845/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Condonation for Late Filing
Outcome
Leave to appeal granted; costs to be determined in the appeal.
Judges
Smith
Legal Topics
Condonation for Late Filing, Leave to Appeal, Rescission of Judgment, Bona Fide Defence
Civil Procedure Condonation for Late Filing Leave to Appeal Rescission of Judgment Bona Fide Defence

Case Brief

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Parties

Gesin Dorothea Van Wyk

Applicant

Andries Andriaan Bester NO

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Condonation for Late Filing

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether leave to appeal should be granted against the judgment dismissing the rescission application.
  3. 3 Whether the applicant has demonstrated reasonable prospects of success on appeal.

Ratio Decidendi

The court found that the applicant had provided a satisfactory explanation for her late filing and demonstrated good cause for her default. Furthermore, the applicant's founding affidavit in the rescission application established a strong bona fide defence, specifically that she had paid a substantial portion of the purchase price. The court held that there are reasonable prospects that another court may find that the strength of the applicant's defence compensates for the lack of a reasonable explanation for her default. Accordingly, the court granted condonation for the late filing and leave to appeal to the Full Bench.

Court Disposition

Leave to appeal granted; costs to be determined in the appeal.

Orders

  • The applicant is granted leave to appeal to the Full Bench of this Court against the judgment delivered on 26 February 2015.
  • Costs shall be in the appeal.