De Wet v Koen

• Jurisdiction: South Africa
• Judge: EF Dippenaar AJ
• Judgment Date: 29 June 2012
• Docket Number: 20138/2011
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 08 June 2012
• Citation: 2015 JDR 1881 (GJ)

EF Dippenaar AJ:

[1]

This is an application for leave to appeal by the First, Second and Third Applicants against the order granted in favour of the First to Fourth Respondents on 9 December 2011. The Applicants were the Respondents in that application.

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EF Dippenaar AJ

[2]

The Applicants seek condonation for the late filing of their notice of leave to appeal. This application is opposed by the First to Fourth Respondents.

[3]

An affidavit was filed by the Third Applicant in support of the condonation application which explains the delays which occurred over the festive period and consequent upon the Applicants' changing their legal representatives.

[4]

In the exercise of my discretion and in the interests of fairness, I am of the view that the condonation sought should be granted.

[5]

In addition to the notice of application for leave to appeal dated 25 January 2012, a further document dated 16 April 2012 was filed. The latter document comprises some 16 pages and contains not only the grounds on which leave to appeal is sought, but also to an extent, the argument on which such grounds are based. Although not strictly in accordance with the normal format of an application for leave to appeal, the Applicants will not be penalised for the format utilised in the aforesaid notices.

[6]

The grounds upon which leave to appeal is sought, are much wider than the issues raised on the application papers by the current Applicants and in various instances raise issues which, on the application papers were either not disputed, or were common cause between the parties.

[7]

On the application papers, the application was mainly opposed by the Third Applicant and the First and Second Applicants did not object to an order being granted against them in the terms sought, save in respect of costs. In the

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EF Dippenaar AJ

present application, all three Applicants seek leave to appeal against the judgment and order granted.

[8]

A large portion of the Applicants' argument to obtain leave to appeal was directed at complaining about the poor legal advice and assistance they had received from their previous attorneys of record and counsel.

[9]

The Applicants' argument was further mainly directed at raising new issues which had either been admitted on the application papers or had not been raised in argument during the original hearing of the application.

[10]

Although in principle a legal concession can be withdrawn and an abandoned legal contention be revived on appeal, this can only be done where the...