Brummer v Gorfil Brothers Investments (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
• Judgment Date: 30 March 2000
• Docket Number: CCT 45/99
• Hearing Date: 30 March 2000
• Court: Constitutional Court

Yacoob J:

[1] We have before us a belated application for special leave to appeal and an application for condonation of the lateness. These H applications are part of an attempt by the applicant to set aside the sale in execution of his right in certain pending proceedings which I describe later. This attempt began with the issue of a combined summons in the Transvaal High Court during May 1995, claiming that the sale should be set aside as an abuse of the Court process and contrary to I public policy. The High Court dismissed this claim on 28 March 1996 [1] and refused leave to appeal. The Supreme Court of Appeal granted leave, heard the appeal

Yacoob J

and dismissed it. [2] The majority in that Court held that the sale in execution was not against public policy and should not be set A aside. The applicant now wants to appeal to this Court. The applications in this Court were filed on 15 December 1999, more than nine months after the delivery of the judgment in the Supreme Court of Appeal.

[2] The applicant's right that was sold relates to an action that he B launched in 1987, claiming damages for the alleged repudiation of a contract he had entered into with the fourth respondent. [3] The third respondent and his father [4] were also joined. [5] In September 1991, at the close of the applicant's case, the trial Judge absolved the third respondent and his father from the instance with costs, but refused absolution in C respect of the fourth respondent. The costs payable by the applicant to the third respondent and his father pursuant to this order were taxed in the sum of R52 436,48. This amount remained unpaid and the third respondent and his father caused the applicant's right in the pending case to be attached and sold in execution. The first respondent bought the applicant's right at the sale in execution on 10 March 1993. The third respondent and his father were the D sole shareholders and directors of the first respondent at the time of the sale.

[3] I now consider the application for condonation. It is first necessary to consider the circumstances in which this Court will grant applications for condonation for special leave to appeal. This Court has held that an application for leave to appeal will be granted if it E is in the interests of justice to do so and that the existence of prospects of success, though an important consideration in deciding whether to grant leave to appeal, is not the only factor...