Oosthuizen v Dr Konar (58019-2021) [2023] ZAGPJHC 1497 (18 October 2023)

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 >> 2023 >> [2023] ZAGPJHC 1497 | Noteup | LawCite sino index ## Oosthuizen v Dr Konar (58019-2021) [2023] ZAGPJHC 1497 (18 October 2023) Oosthuizen v Dr Konar (58019-2021) [2023] ZAGPJHC 1497 (18 October 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_1497.html sino date 18 October 2023 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO :  58019/2021 DATE :  18-10-2023 1. REPORTABLE: NO 2. OF INTEREST TO OTHER JUDGES:  NO. 3. REVISED. 18 October 2023 In the matter between MARYKA OOSTHUIZEN                                     Applicant and DR L KONAR                                                   Respondent J U D G M E N T LEAVE TO APPEAL 1. CRUTCHFIELD, J :   This is an application for leave to appeal brought by the respondent in the main application against the whole of my judgment delivered in this matter.  The parties are referred to herein as they were in the main application.  The applicant opposed the application for leave to appeal. Whilst the respondent raised multiple grounds for leave to appeal in its application for such leave, the respondent effectively relied at the hearing of the application for leave to appeal on two grounds; being that I granted interim interdictory relief in circumstances where the applicant sought final interdictory relief in its notice of motion on an urgent basis, and in circumstances where the hearing in respect of the allegations complained of by the applicant was yet to take place. 2. The applicant, whilst it claimed final interdictory relief in this notice of motion, met the lesser requirements of interim interdictory relief in its papers, and I exercised my discretion to grant such relief given that there was, at the time that I heard the matter, no finality in respect of the hearing to grant such interim relief. The applicant alleged and relied upon a clear right. The latter incorporates a prima facie right, necessary for the grant of an interim interdict.  The applicant in its founding papers referred to the balance of convenience in so far as interim relief might become necessary for any reason and alleged that the balance of convenience favoured the applicant.  I dealt therewith in the judgment. 3. I dealt therewith in the judgment. Accordingly, notwithstanding the content of the notice of motion, the applicant dealt in its papers with the potential that interim relief might become necessary and those allegations were before the Court on the papers at the relevant time. Thus, given that that the applicant fulfilled the lesser requirements necessary for the granting of an interim interdict, I granted that relief in circumstances where the hearing to take place in respect of the respondent’s allegations had not yet been finalised and the applicant had not yet had an opportunity to place its position before the ACEE. The respondent, at the hearing for leave to appeal, argued that the outcome of the hearing by ACEE favoured him and had been finalised in the interim. 4. There was no evidence before me in this regard and the application before me in effect was an application for leave to appeal in respect of the judgment granted by me and not an application in respect of the final relief envisaged in the order granted by me.  In the circumstances, I may not decide this application for leave to appeal based on subsequent events not dealt with by me on the record and in the absence of any application by the respondent to advance further evidence. 5. In the circumstances, for the reasons set out by me abovementioned, there is no reasonable prospect that another court will reach a different conclusion to that reached by me on the papers before me at the time of the hearing, in terms of section 17(1)(a)(i) of the Superior Courts Act 10 of 2013 (“the Act”).  Furthermore, there is no compelling reason why the appeal should be heard in terms of s 17(1)(a)(ii) of the Act.In the circumstances, the application for leave to appeal stands to be dismissed and an order in those terms will follow hereunder.  Furthermore, there is no reason why the costs of the application for leave to appeal should not follow the outcome of the merits of the application.  Accordingly, because of the aforementioned, the application for leave to appeal is dismissed with costs.  I hand down the judgment. 6. There is one further issue that remains to be dealt with, being the delay in the hearing of the application for leave to appeal. 7. The judgement in the main application was delivered electronically on 15 March 2022. The application for leave to appeal was dated 1 April 2022. It is not apparent from caselines that the respondent delivered the application for leave to appeal to the relevant registrar or to the applicant’ attorney. 8. The application for leave to appeal did not come to my knowledge until correspondence dated June 2023 was sent to the office of the Deputy Judge President. Regrettably, I do not have the exact date of the correspondence at hand as my judiciary laptop was not functioning at the time.  In any event, my office thereafter addressed correspondence to the parties’ attorneys 20 July 2023, 26 July 2023, 7 august 2023, and 8 august 2023. No response whatsoever was received from either of the attorneys, particularly the respondent’s attorney, there being the applicant for leave to appeal. The registrar, at the instance of my office, set the application down for hearing on 14 September 2023 and a “widely shared note” in this regard were uploaded on caselines given that emails from my office were ignored. 9. The applicant’s attorney, thereupon, advised that the email correspondence from my office did not come to their attention as the email addresses were no longer functional. 10. Accordingly, the matter was set down and heard on 17 October 2023. 11. The respondent’s reasons for failing to reply to the email correspondence of my office amounted to the counsel’s mother being ill and he being focused on her ill health. No reason was forthcoming as to the respondent’s failure to deal with that correspondence. 12. The email addresses of the applicant’s attorneys were, as above-mentioned, not functional and the correspondence did not come to that office’s attention. 13. The respondent’s attorney uploaded the correspondence allegedly sent to my office, addressed to my secretary at the time, dated 6 May 2022, 31 August 2022, and 13 December 2022. 14. Correspondence dated 13 February 2023 was addressed to my secretary and to the DJP’S office. 15. It is astonishing that not one of 4(four) items of correspondence came to my attention. 16. The respondent’s attorney did not upload to caseline the actual email correspondence transmitted to my secretary at the time and the DJP’s office but effectively, only the attachments thereto, being the correspondence above-mentioned. 17. It is astonishing not one of the 4(four) items of correspondence came to my attention and that the first notice I had of the application was the correspondence transmitted to the DJP’s office dated June/ July 2023. In the circumstances, the application was heard on 17 October 2023. CRUTCHFIELD, J JUDGE OF THE HIGH COURT DATE :  ………………. sino noindex make_database footer start