Dancing Beauty and Hair (Pty) Ltd v Northern Centre Shareblock (Pty) Ltd and others

• Jurisdiction: South Africa
• Judge: QG Leech AJ
• Judgment Date: 21 February 2022
• Docket Number: 19633/2021
• Hearing Date: 28 January 2022
• Court: Gauteng Local Division, Johannesburg
• Citation: 2022 JDR 0565 (GJ)

Q Leech AJ:

1.

The applicant applies for leave to appeal. The applicant was the respondent in the main application.

2.

In the main application, I found that the applicant was in unlawful occupation of the property known as Republic Place, situate at Shop 11, Republic Place, Hill Street, Ferndale, Randburg and described as Erf 886, Ferndale Township, Registration Division l.Q., Gauteng. The first respondent owns the property and the second respondent is responsible for letting the property.

3.

I granted an order evicting the applicant from the property. The order was granted on 9 December 2021. The applicant was required to vacate the property on or before 1 January 2022.

4.

The applicant served by email an application for leave to appeal "against the order" on 23 December 2021. The application for leave to appeal was

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served within the fifteen (15) day time period provided for in Rule 49(1) (b). However, the applicant failed to upload the application to the electronic filing system within that period and only did so on 12 January 2022. The application for leave to appeal was not lodged within the prescribed time and accordingly the right to appeal lapsed when the filing date was missed (Rule 49(1)(b) of the Uniform rules of Court, read with section 18(5) of the Superior Courts Act 10 of 2013, Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA), para. 46; and Panayiotou v Shoprite Checkers (Pty) Ltd and Others2016 (3) SA 110 (GJ), para. 14 and 15. Cf. M Fihrer & Son (Pty) Ltd v Willemse1993 (2) SA 713 (T), 718 H - 719 A).

5.

The applicant applied for condonation for the late filing. The court has the inherent jurisdiction to grant condonation (Moluele and Others v Deschatelets, NO1950 (2) SA 670 (T), 675 - 676). "The basic principle is that the Court has a discretion" (Melane v Santam Insurance Co Ltd 1962 SA 531 (A), 532 C) and it is for the applicant who seeks such condonation to satisfy the Court that it should exercise its discretion in his favour" (Yunnan Engineering CC and Another v Chater and Others 2006 SA 571 (T), para. 22 and 26). See too United Plant Hire (Pty) Ltd v Hills1976 (1) SA 717 (A) at 720E-G.

6.

The court will grant condonation when necessary in the interests of justice (Moluele supra, 675) and the discretion is to be exercised judicially upon a consideration of all the facts (Melane supra, 532 C). The discretion is not constrained by any rule of thumb which "would only

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serve to harden the arteries of what should be a flexible discretion" (Melane supra, 532 E).

7.

As stated in Suidwes-Afrikaanse Munisipale Personeel Vereniging v Minister of Labour and Another1978 (1) SA 1027 (SWA), 1038 C, the court "has an inherent right to grant condonation where principles of justice and fair play demand it to avoid hardship and where the reasons for strict non-compliance with such time limits have been explained to the satisfaction of the Court" (Suidwes-Afrikaanse Munisipale Personeel Vereniging v Minister of Labour and Another1978 (1) SA 1027 (SWA), 1038 C). "In essence it is a matter of fairness to both sides" (Melane supra, 532).

8.

The factors that are "usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case" (Melane supra, 532 C - D). Other factors are "the nature of the default or negligence, if any, which led to non-compliance, the degree of hardship which will be caused to the party in default if condonation is refused, and any hardship or substantial injustice which may possibly be caused to the other party if relief is granted" (Moluele supra, 677).

9.

In terms of Rule 49(1)(b), "the court may, upon good cause shown, extend the aforementioned periods of fifteen days". As held by the full court in General Accident Insurance Co South Africa Ltd v Zampelli1988 (4) SA 407 (C), at 411 C:

'"Good cause shown' has now, it seems, been accepted to mean that not only must the applicant seeking the indulgence of condonation for the late filing of heads of argument in an appeal - for an indulgence it undoubtedly is - give a reasonable and

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acceptable explanation for his failure to comply with the Rules, but must also show that he has what Berman J in Ajam v Francke (supra) has described as 'fair prospects of success' in the appeal or what in Louw v Louw (supra) the Court referred to as 'reasonable prospects of success' (see also Saloojee and Another NNO v Minister of Community Development1965 (2) SA 135 (A) at 141H). He must also give an acceptable explanation of any delay in applying for condonation (see Saloojee's case supra at 138H)."

10.

In the context of an application for leave to appeal, which was refused by the full court but granted on application to the Supreme Court of Appeal, the full court in High School Ermelo and Another v The Head of Department and Others [2008) 1 All SA 139 (T), para. 9:

"The application for condonation cannot succeed. We are aware that usually, a court adopts a robust attitude by granting the condonation, so that the matter is disposed of; for example, in an appeal. However, care must be taken not to create an impression that an application for condonation is a mere formality. An applicant must still make out its case. It is a requirement that for an application for condonation to succeed, an applicant must show reasonable prospects of success; in casu, there are none. Secondly, the explanation for the delay is not reasonable; the cause thereof was gross ineptitude on the part of the applicants' legal representatives in putting in an obviously fatally defective notice of application for leave to appeal ... Finally, in considering any possible prejudice to the applicants, we took into account the fact that the main application is about to be heard."

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11.

As explained in Melane supra, at 532 D - E, the factors "are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation ... What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong ...".

12.

In Melane, the prospects were - in the opinion of the court - so remote as to unappreciable, and on weighing that important factor with others, refused condonation. Although it was stated in Lipschitz NO v Saambou-Nasionale Bouvereniging1979 (1) SA 527 (T) at 529 D - E that the prospects of success consideration does not necessarily enter into an application under Rule 49 (1), the circumstances in which it may not arise are limited and not present in this matter.

13.

The applicant briefly addresses some of the usual factors. The applicant emphasises the short delay, which is incorrectly calculated in the application but not to a material degree, proffers an explanation for the delay, alleges there is no prejudice to the respondents and claims good prospects of success.

14.

The applicant attempts to explain the inability to file the application for leave to appeal, which I had some difficulty in understanding. However, my understanding of the explanation is, in summary, that the applicant's attorney was unable to operate the electronic filing system on 23 December 2021 without the presence of support staff who were not in attendance as their offices had closed on 15 December 2021. The applicant's attorney abandoned any attempt to file the application until the

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support staff returned. The support staff returned to the office on 12 January 2022, and the application was filed.

15.

The applicant's detailed explanation is that the offices of the applicant's attorneys closed on 15 December 2021 and the employees were due to return on 12 January 2022. However, the attorney responsible for the matter, Mr Mantsha, remained in the office attending to the training of law students who were "working as interns until 23 December 2021." Mr Mantsha appears to have been unfamiliar with the electronic system and enlisted the assistance of one of the interns. Mr Mantsha and the intern together contacted and obtained guidance from a legal secretary but experienced certain technical difficulties during the "video call". Mr Mantsha and the intern were ultimately unable to create a new section and upload the application for leave to appeal. The perceived necessity for a new section was not explained.

16.

The applicant "submits" that the reason for this inability is that "the date was frozen" and the application could not be uploaded until the date was "unfrozen" by a secretary on 12 January 2022. In another part of the founding affidavit, the applicant states that Mr Mantsha and the intern "were not sanctioned" to add a new section "for the purposes of uploading the notice of appeal". However, in a couple of places the applicant attributes the inability to a "misunderstanding" or "misinterpretation" of the electronic system.

17.

Despite the order of eviction which required the applicant to vacate the premises on 1 January 2022, the applicant's attorney deferred any attempt to file the application until their offices reopened and the support staff returned to work. I can infer that the applicant's attorney wilfully decided to do so knowing that the application for leave had to be lodged

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before the order would be suspended and there is no indication of any attempt by the...