IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

JUDGMENT DELIVERED THIS 23rd DAY OF MARCH 2010

[1] This is an application for leave to appeal the judgment handed down in this matter on 18 February 2010. For the sake of convenience I propose to refer to the parties by their titles in the action.

[4] Counsel for the defendants sought to persuade me that there was a reasonable prospect that another Court would find that the facts pleaded by the defendants in support of their contention that the plaintiff had waived his right to benefit from the suspensive condition justified that conclusion. In summary, these facts were the same as those relied upon to prove the oral agreement extending the time within which the suspensive condition was to be fulfilled. It was asserted, further, that the plaintiffs father, who was authorised in this regard by his son, told the third defendant that if a mortgage loan could not be obtained from ABSA Bank, then the plaintiff would apply to every other bank until a loan was granted, notwithstanding the provisions of the suspensive condition.

[6] For the above reasons I am compelled to conclude that there is no reasonable prospect of success on appeal. It follows that the application must be dismissed. I therefore make the following order:
1. The application for leave to appeal is dismissed.
2. The defendants are ordered to pay the costs of this application jointly and severally, the one paying, the others to be absolved.

S J KOEN AJ