Mosselbaai Boeredienste (Pty) Ltd v OKB Motors CC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mocumie JA, Schippers JA, Carelse JA, Meyer JA and Goosen JA |
| Judgment Date | 09 June 2023 |
| Citation | 2023 JDR 2033 (SCA) |
| Hearing Date | 04 May 2023 |
| Docket Number | 1216/21 |
| Court | Supreme Court of Appeal |
Carelse JA (Mocumie, Schippers, Meyer and Goosen JJA concurring):
This is an application for special leave to appeal against the order of the full bench of the Free State Division of the High Court, Bloemfontein (Naidoo J and De Kock AJ), delivered on 18 November 2021 (the high court). That court dismissed the application for condonation of the late prosecution of the appeal. On further application to this Court for special leave to appeal,
2023 JDR 2033 p4
Carelse JA (Mocumie, Schippers, Meyer and Goosen JJA concurring)
the application was referred for oral hearing in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013. The parties were directed to be prepared, if called upon to do so, to address this Court on the merits.
The following facts are common cause. On 7 February 2018, the applicant, Mosselbaai Boeredienste (Pty) Ltd t/a Mosselbaai Toyota (plaintiff) and the respondent, OKB Motors CC t/a Bultfontein Toyota (defendant), both motor dealers, concluded an interdealership agreement in terms of which the respondent bought a Toyota Etios motor vehicle (the vehicle) from the plaintiff for resale.
On the same day, Mrs Steyn, an employee of the defendant, received an invoice from Mr Maritz, the plaintiff's sales manager's email address, namely sales2@mbtoyota.co.za. On 8 February 2018, the vehicle was delivered to the defendant but the plaintiff did not receive payment of the purchase price of R159 353.76. The defendant paid the purchase price into an incorrect bank account because the invoice which was emailed to it was intercepted by an unknown third party who fraudulently changed the defendant's bank details on the plaintiff's invoice, and obtained receipt of the money.
On 8 February 2018, Mrs Steyn emailed proof of payment for the vehicle which reflected the incorrect bank details, which was once again intercepted by an unknown third party who changed the incorrect bank details to the correct bank details that caused the plaintiff to believe that the defendant had correctly made payment for the vehicle. It is not disputed that the standard
2023 JDR 2033 p5
Carelse JA (Mocumie, Schippers, Meyer and Goosen JJA concurring)
practice in the motor dealership industry is that a vehicle is only released upon proof of payment.
The plaintiff instituted an action in the magistrates' court for payment of the amount of R159 353.76, the purchase price of the vehicle. The defendant raised a special plea of estoppel by representation. The court a quo upheld the special plea and dismissed the plaintiff's case. Dissatisfied with the outcome, the plaintiff appealed to the high court. On 19 April 2021, the plaintiff noted its appeal timeously in terms of rule 51(3) of the Magistrates' Court's Rules of Court. [1]
A party who wishes to pursue an appeal to the high court must file a notice contemplated in rule 50(4)(a) [2] for the assignment of a date for the hearing of the appeal, within 40 days of the noting of the appeal. It is common cause that the plaintiff failed to do so. In the result, the appeal lapsed. The plaintiff had to lodge with the registrar two copies of the record of appeal timeously in terms of rule 50(7)(a). [3] This was not done. The plaintiff also sought condonation to file a power of attorney in terms of rule 7(2), [4] authorising the plaintiff's attorney to lodge an appeal.
2023 JDR 2033 p6
Carelse JA (Mocumie, Schippers, Meyer and Goosen JJA concurring)
It is not disputed that the plaintiff failed to prosecute its appeal within 60 days of the noting thereof. The appeal lapsed on 14 July 2021. The plaintiff filed the record of appeal on 20 July 2021. A further complaint of the defendant was that the plaintiff did not file a power of attorney. On 2 August 2021, the appeal was enrolled for hearing on 15 November 2021. On 17 August 2021, the plaintiff launched an application for condonation of its non-compliance with the above-mentioned Rules of Court, and if successful, the reinstatement of the appeal. The defendant opposed the application on the basis of the tardiness of the plaintiff's attorney and the lack of prospects of success.
The high court directed that the application for condonation be heard first and the appeal itself at a later stage, depending on the outcome of the condonation application. On 18 November 2021, the high court dismissed the application for condonation with costs.
The reasons for the delay and non-compliance with the rules have been dealt with extensively in the judgment of the high court and need not be repeated. It was not seriously contested that the delay in finalising the preparation of the record should be laid at the door of the transcribers. The record shows that there are two reasons why the high court refused the application for condonation and reinstatement of the appeal. The first is that there were no prospects of success on...
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