Mtirara v Landmark Mthatha (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Petse ADJP
• Judgment Date: 20 December 2007
• Docket Number: 607/2007
• Court: Transkei Division
• Hearing Date: 07 December 2007
• Citation: 2008 JDR 0509 (Tk)

Petse ADJP:

[1] This is an application for leave to appeal against the whole of the judgment in terms of which I dismissed the applicant's main application with costs on 23 May 2007.

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[2] The application for leave to appeal ("the application") is not a model of good draftsmanship and clarity. It is not only argumentative but also prolix and the proposed grounds of appeal are not clearly and succinctly set out in clear and unambiguous terms as proclaimed in various judicial authorities. [See in this regard : Songono v Minister of Law and Order 1996 (4) SA 384 (E) at 385 I- J; Xayimpi v Chairman Judge White Commission (formerly known as Browde Commission) [2006] 2 All SA 442 (E)]

[3] The application is made on various grounds set out therein. Because of its prolixity I do not propose to set out the grounds relied upon in support thereof so as not to unduly overburden this judgment.

[4] There is a preliminary issue that I need to dispose of before giving consideration to the application. That issue has to do with the application for condonation of the late filing of the application. The following is what gave rise to the condonation application.

[5] The main application was heard by me on 21 May 2007 and at the conclusion of argument I reserved my judgment. As I had intimated to the parties I, after considering the issues, dismissed the main application

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with costs on 23 May 2007. My reasons therefor were subsequently furnished on 7 June 2007.

[6] On 25 June 2007 the application was then delivered. The third respondent in its written heads of argument took the point that the application ("the initial application") delivered on 25 June 2007 was fatally defective for want of compliance with Rule 49(3) of the Uniform Rules of Court. Faced with this challenge the applicant saw it fit to withdraw the initial application and filed a new application on 22 November 2007 which latter application was obviously delivered outside the period prescribed in terms of Rule 49(1) of the Uniform Rules hence the application for condonation of the late filing thereof now before me.

[7] The stance of the respondents in regard to the condonation application is this. They are opposing the condonation application purely on the basis that the proposed appeal does not enjoy a reasonable prospect of success but not otherwise.

[8] Because of the stance adopted by the respondents it is necessary that a ruling be made on the fate of the applicant's condonation application.

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[9] The test that is of application when it comes to a consideration of the question of whether or not condonation ought to be granted is now well settled.

In UNITED PLANT HIRE (PTY) LTD v HILLS 1976 (1) SA 717 (A) at 720 E -G it was held :

"[I]t is well settled that, in considering application for condonation, the court has a discretion, to be exercised judicially upon a consideration of all the facts, and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of non-compliance with the rules, the explanation thereof, the prospects of success on appeal, the importance of the case, the respondent's interest in the finality of the judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other, thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong".

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[11] In a passage at 532 C - F in Melane v Santam Insurance 1962 (4) SA 531 (A) Holmes JA put it in these terms:

"[I]n deciding whether sufficient cause has been shown, the basic principle is...