Schorr and Others v Reckmann and Others (22734/2022) [2024] ZAGPJHC 1203 (26 November 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 1203 | Noteup | LawCite sino index ## Schorr and Others v Reckmann and Others (22734/2022) [2024] ZAGPJHC 1203 (26 November 2024) Schorr and Others v Reckmann and Others (22734/2022) [2024] ZAGPJHC 1203 (26 November 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_1203.html sino date 26 November 2024 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 22734/2022 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. 26 November 2024 EJ FRANCIS In the matter between: RAINER SCHORR First Applicant (Fifth Respondent in review application) LAURINEE CASTLE Second Applicant (Sixth Respondent in review application) WALTER FISCHER Third Applicant (Seventh Respondent in review application) and GUNTHER FRANZ RECKMANN First Respondent (First Respondent In review application) (Applicant in review application) BUSANI MABUNDLA N.O. Second Respondent (Second Respondent in review application) EMPOWA INVESTMENTS (PTY) LIMITED Third Respondent (Third Respondent in review application) ANDREW ADAM LIPSHITZ Fourth Respondent (Fourth Respondent in review application) ROCKFIRE SA (PTY) LIMITED Fifth Respondent (Fifth Respondent in review application) JUDGMENT FRANCIS J 1.  There are two applications before this court. The first application is for condonation of the late filing of the application for leave to appeal. The second application is an application for leave to appeal to the Supreme court of Appeal, alternatively to a Full Court against my judgment that was handed down on 12 April 2024. This was after I had dismissed an application to review determinations made by the second respondent. The review application was brought by the first respondent. I had granted a counter application that was brought by the third and fourth respondents. 2.  The first to third applicants (the applicants) have raised eight grounds for leave to appeal which is not necessary to repeat. In essence they support the grounds for leave to appeal filed by the first respondent on 3 May 2024. However, they filed their application for leave to appeal on 30 May 2024 which is beyond the prescriptive 15-day period in which leave to appeal must be filed. 3.  It should be noted from the onset that the applicants were cited as the fifth to seventh respondents in the review and counter applications. They were cited as interested parties against whom no relief was sought save in the event of such respondents opposing the granting of the relief sought in which case costs would be sought against them, jointly and severally, the one paying and the other to be absolved. The application was served on them as well as the notice of set down on their chosen email addresses. They did not oppose both the review application and counterapplication. They have now raised similar issues that were raised by the first respondent in his application for leave to appeal. The first respondent was initially represented by SWVG INC. The first respondent is now being represented by Meisie Nkaiseng Inc which is the same attorneys that are representing the applicants. I could not find any notice of withdrawal of the first respondent’s attorney nor a notice of appointment as attorneys of the first respondent and that of the applicants. 4.  I have already found in a separate judgment that the first respondent has raised nothing new in his application for leave to appeal and I have dismissed that application. 5.  Since I am faced with an application for condonation for the late filing of the application for leave to appeal it is trite that one of the elements that an applicant must show is prospects of success. The other is the degree of lateness and reasons for the lateness. This court was required to review and set aside two determinations made by the second respondent in terms of the provisions of the Arbitration Act 42 of 1965 (the Arbitration Act) alternatively the common law and to set aside the second respondent’s appointment as an expert. 6.  It is clear from the application for leave to appeal that the applicants are seeking to be heard through the back door when they had failed to file any notice of intention to oppose in the review application and counterapplication. This application for leave to appeal and condonation appears to be an afterthought that was manufactured much later. 7.  It is interesting to note that the applicants are being represented by the first respondent’s attorney and his application was filed timeously on 3 May 2024 by their own attorney which is the same attorney. 8.  It is common cause that judgment was delivered on 12 April 2024. An application for leave to appeal had to be served and filed within 15 days after the order was made. It had to be filed by 3 May 2024. It was only filed on 31 May 2024. There are huge gaps in their application about why their application for condonation and leave to appeal was only filed on 31 May 2024. What they are now doing by applying for condonation of the late filing of their leave to appeal is to sneak in through the backdoor what their defence is if any in the main application. This cannot be allowed. The applicants were required to explain the delay fully which they have not done. 9.  The application for leave to appeal appears to have been brought in terms of the provisions of section 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). The aforesaid section provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success and that there is a compelling reason why the appeal should be heard including conflicting judgments on the matter under consideration. 10.  When it comes to the question of prospects of success the applicants have failed to demonstrate that there are any prospects of success. They did nothing from the date when the main application was served on them. They did not file any notice to oppose the main application and counter application. 11.  I have carefully perused the grounds for leave to appeal and my judgment and do not believe that there are any reasonable prospects of success and that there is a compelling reason why the appeal should be heard including conflicting judgments on the matter under consideration. The applicants have raised nothing new in their application for leave to appeal. 12.  The applications for condonation and leave to appeal stands to be dismissed. 13.  There is no reason why costs should not follow the result. 14.  In the circumstances the following order is made: 14.1    The application for condonation of the late filing of the application for leave to appeal is dismissed with costs. 14.2    The application for leave to appeal is dismissed with costs. 14.3    The applicants are to pay the costs of both applications in equal portions. FRANCIS J JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG APPEARANCES FOR APPLICANTS: F STRYDOM & C GIBSON INSTRUCTED BY MEISIE NKAISENG INCORPORATED FOR 3 & 4 RESPONDENTS : D WATSON INSTRUCTED BY WERKSMANS ATTORNEYS DATE OF JUDGMENT: 26 NOVEMBER 2024 This judgment was handed down electronically by circulation to the parties’ and/or parties’ representatives by email and by being uploaded to CaseLines. The date and time for hand-down is deemed to be 14h00 on 26 November 2024. sino noindex make_database footer start