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Van Wyk v Bester NO (2845/2012) [2015] ZAECGHC 68 (23 June 2015)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

                                                                                        Case no:  2845/2012

                                                                                   Date Heard: 04/06/2015

                                                                              Date Delivered: 23/06/2015

In the matter between:

GESIN DOROTHEA VAN WYK                                                         APPLICANT

And   

ANDRIES ANDRIAAN BESTER NO                                              RESPONDENT


JUDGMENT: LEAVE TO APPEAL

SMITH J:

[1] The applicant seeks condonation for the late filling of her application, as well as leave to appeal the judgment delivered on 26 February 2015, dismissing her application for rescission of a default judgment.

[2] The applicant has provided a comprehensive explanation for her failure to file the application timeously, and I am satisfied that she has shown good cause for her default. Her failure to file the application within the prescribed time period is accordingly condoned.

[3] The applicant seeks leave to appeal on various grounds, essentially contending that there are reasonable prospects that another court may find that she has set out sufficient facts to establish that she has a bona fide defence, and that this factor would compensate for the lack of a reasonable explanation for the default.

[4] In considering whether to grant leave to appeal I do not have to be persuaded that I have erred in the respects contended for by the applicant, but merely that there are reasonable prospects that another court may find differently. Ms Crouse, who appeared on her behalf, submitted that the facts set out in the applicant’s founding affidavit in the rescission application established an “exceptionally strong bona fide defence”, which at the very least established that she had paid a substantial portion of the purchase price. She submitted that there are reasonable prospects that another court may find that the strength of the applicant’s defence compensates for the complete lack of an explanation for her default. Ms Crouse also indicated that should leave be granted, the applicant will apply to the appeal court for leave to file further affidavits.  While I am not required to make any finding regarding the prospects of such an application, I am nevertheless satisfied that there are reasonable prospects of success on appeal, and am accordingly constrained to grant leave.

[5] In the result I make the following order:

(a)         The applicant is granted leave to appeal to the Full Bench of this Court against the judgment delivered on 26 February 2015.

(b)         Costs shall be in the appeal.

________________________

J.E SMITH

JUDGE OF THE HIGH COURT

 

Appearances

 

Counsel for the Applicant           :        Advocate Crouse

Attorney for the Applicant          :        Ght Justice Centre

                                                                              69 High Street

                                                                              Grahamstown

                                                                              Ref: L Crouse

                                                                              Tel: 046 622 9350

 

Counsel for the Respondent       :        Advocate Bester

Attorney for the Respondent      :        Wheeldon Rushmere and Cole

                                                                              P.O Box 88

                                                                              Grahsmtown

                                                                              Ref: Mr Van der Vee

 

Date Heard                               :        4 June 2015

Date Delivered                          :        23 June 2015