CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 45/99
PAULUS PHILLIPUS
BRUMMER Applicant
versus
GORFIL BROTHERS INVESTMENTS (PTY)
LTD First Respondent
THE ESTATE OF THE LATE SOLLY GORFIL Second
Respondent
DAVID GORFIL Third Respondent
NYLSTROOM HOTEL CC Fourth
Respondent
Decided on : 30 March 2000
JUDGMENT
YACOOB J:
| [1] | We have before us a belated
application for special leave to appeal and an application for condonation of
the lateness. These 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 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 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 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 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 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 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 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 in the
determination of the interests of
justice.[6] It is appropriate that an
application for condonation be considered on the same basis and that such an
application should be granted
if that is in the interests of justice and refused
if it is not. The interests of justice must be determined by reference to all
relevant factors including the nature of the relief sought, the extent and cause
of the delay, the nature and cause of any other
defect in respect of which
condonation is sought, the effect on the administration of justice, prejudice
and the reasonableness of
the applicant’s explanation for the delay or
defect. |
| [4] | The main issue to be raised
in the intended appeal broadly concerns the constitutionality of the laws that
permit a party to pending
legal proceedings or some other person to purchase the
right of another in those proceedings for the sole purpose of terminating
the
litigation. The appropriate constitutional provision is section 34 of the
Constitution which confers on everyone the right of
access to courts. However,
the sale in execution took place before either the interim
Constitution[7] or the Constitution
took effect. This Court held in Du
Plessis[8] that the interim
Constitution would ordinarily have no retrospective effect. It left open the
question whether there might possibly
be cases “where the enforcement of
previously acquired rights would in the light of our present constitutional
values be so
grossly unjust and abhorrent that they cannot be
countenanced”.[9] It follows
that the Constitution, too, cannot apply to such transactions in the absence of
the extraordinary circumstances referred
to in Du Plessis. To my mind,
no such circumstances exist in this case and there can be no prospect of success
in relation to the main issue. I
express no opinion on what the prospect would
have been if the sale in execution had not taken place before the interim
Constitution
came into operation. |
| [5] | This Court, like the Supreme
Court of Appeal and the High Courts, has the power to “develop the common
law, taking into account
the interests of
justice.”1[0] The applicant
intends to ask this Court to exercise this power with retrospective effect in
the course of the intended
appeal.1[1] I assume that this
Court can exercise the discretion to develop the common law retrospectively in
appropriate cases. |
| [6] | If the common law is
developed in the intended appeal in favour of the applicant and if he, as a
result, succeeds in procuring an
order setting aside the sale in execution, he
will acquire the right to continue the pending proceedings against the fourth
respondent.
The court has not heard any evidence in that case since it was
postponed on 26 September 1991. It would not ordinarily be in the
interests of
justice for an applicant to be allowed to pursue his claim some nine years after
it was last heard by a court, and the
applicant advances no special reason why
this should be so in the present case. This conclusion is reinforced by the
fact that the
delay had not been occasioned by the respondents and that the
applicant’s conduct after the sale was less expeditious and efficient
than
was to be expected. I have mentioned that the sale in execution took place
during March 1993. The applicant made no effort
to stay the sale although he
had received the writ of execution some four months earlier. The case for
setting aside the sale in
execution was started in May 1995, more than two years
after the sale had taken place. The petition for leave to appeal to the Chief
Justice was filed, out of time, on 20 November 1996, some three months after the
application for leave to appeal against the judgment
of the High Court was
dismissed by that court. The application before us was filed only on the 15
December 1999, more than nine
months after the delivery of the judgment of the
Supreme Court of Appeal. The cumulative effect of all these factors drives me
to
the conclusion that it is not in the interests of justice for condonation to
be granted and that it should be refused. |
| [7] | The respondents ask for
their costs if this application were to be refused. We do not accede to this
request. This Court does not
ordinarily make orders for costs in applications
that are dealt with summarily on the basis of information contained in
affidavits,
without written or oral argument being called for. Nothing warrants
a departure from this practice in the present
case. |
1. The application for condonation is dismissed.
2. There is no order as to
costs.
Chaskalson P, Langa DP, Goldstone
J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J and
Cameron AJ concur in
the judgment of Yacoob J.
For the applicant: Lubbe & Roets.
For the respondents: Hofmeyr Herbstein Gihwala Cluver & Walker
Inc.
[1] The judgment is reported as
Brummer v Gorfil Brothers Investments (Pty) Ltd en Andere 1997 (2) SA
411(T).
[2] The judgement is reported as
Brummer v Gorfil Brothers Investments (Pty) Ltd en Andere 1999 (3) SA
389 (SCA).
[3] The first defendant in the pending
proceedings.
[4] Who is deceased and whose deceased
estate is second respondent.
[5] The second and third defendants in
the pending proceedings.
[6] Fraser v Naude 1999 (1) SA
1 (CC); 1998 (11) BCLR 1357 (CC) at para 7.
[7] Act 200 of 1993, which came into
operation on 27 April 1994.
[8] Du Plessis and Others v De
Klerk and Another 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC).
[9] At para 20.
1[0] Section 173 of the
Constitution.
[1]1 Amod v Multilateral Motor
Vehicle Accidents Fund [1998] ZACC 11; 1998 (4) SA 753 (CC); 1998 (10) BCLR 1207 (CC)
at para 20.
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