Vena and Another v Vena and Others (2461/2008) [2009] ZAECPEHC 26; 2010 (2) SA 248 (ECP) (28 May 2009)

Vena and Another v Vena and Others (2461/2008) [2009] ZAECPEHC 26; 2010 (2) SA 248 (ECP) (28 May 2009)

The court found that the applicant failed to establish urgency as required by rule 6(12)(b), with vague and insubstantial allegations that did not justify the truncated procedure. While the Supreme Court of Appeal has indicated that lack of urgency should generally result in striking the matter off the roll, the trial court retains discretion to dismiss an application in cases of abuse of process. On the merits, the agreement did not specify the method of payment, and commercial practice as well as the conduct of both parties indicated that payment by conditional guarantee was contemplated. The applicant's objections regarding the method of payment were not raised in his papers and cannot...

Citation
[2009] ZAECPEHC 26
Parties
Applicant: Phindile Alfred Vena; Respondent: Nomthandazo Vena; Respondent: Khanyisa Distributors CC; Respondent: Roland Meyer N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
28 May 2009
Case Number
2461/2008
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Urgent Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
Jones
Legal Topics
Urgency in Motion Proceedings, Payment in Commercial Contracts, Absolution From Instance, Leave to Appeal, Close Corporations
Civil Procedure Commercial and Corporate Urgency in Motion Proceedings Payment in Commercial Contracts Absolution From Instance Leave to Appeal Close Corporations

Case Brief

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Parties

Phindile Alfred Vena

Applicant

Nomthandazo Vena

Respondent

Khanyisa Distributors CC

Respondent

Roland Meyer N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Urgent Application

Legal Issues

  1. 1 Whether the application should have been dismissed for lack of urgency or merely struck off the roll.
  2. 2 Whether payment by conditional guarantee constitutes valid payment under the agreement.
  3. 3 Whether the applicant is entitled to have his offer accepted due to alleged non-payment by the first respondent.

Ratio Decidendi

The court found that the applicant failed to establish urgency as required by rule 6(12)(b), with vague and insubstantial allegations that did not justify the truncated procedure. While the Supreme Court of Appeal has indicated that lack of urgency should generally result in striking the matter off the roll, the trial court retains discretion to dismiss an application in cases of abuse of process. On the merits, the agreement did not specify the method of payment, and commercial practice as well as the conduct of both parties indicated that payment by conditional guarantee was contemplated. The applicant's objections regarding the method of payment were not raised in his papers and cannot...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • Condonation for late filing of the application for leave to appeal is granted.
  • The application for leave to appeal is dismissed with costs.