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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 09853/2015

Not reportable

Not of interest to other judges

Revised.

24/2/2017

In the matter between:

A MELAMED FINANCE (PTY) LTD (in liquidation)                             Respondent/Plaintiff

and

HIRSCHOWITZ, SANDRA PHYLLIS                                                     Applicant/Defendant

 

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

 

MAKUME, J:

[1] On the 19^th September 2016 I dismissed the Applicant’s application for leave to amend her plea in certain respects. The Applicant now seeks leave to appeal against that order of dismissal.

[2] In issue at that stage was whether or not the intended amendment constituted a withdrawal of an admission.

[3] In my judgment I found that indeed the amendment if allowed will result in withdrawal of a statement of fact which had become common cause as it had been admitted in the plea. I concluded that the application to amend was mala fide and will prejudice the Respondent’s case.  I still stand by that conclusion.

[4] The test to be applied in deciding on an application for leave to appeal is set out in section 17(1) (a)-(c).  A court must be satisfied and hold the opinion that there are reasonable prospects of success of the appeal itself before granting leave.

[5] In this application nothing knew has been placed before me to persuade me that there are reasonable prospects of success should I refer this application to amend to the full bench of this division.

[6] In this matter summons with detailed particulars of claim was issued during March 2015. The plea was delivered during September 2015 some five months later. The notice to amend paragraphs 3.1 and 3.2 of the plea was given on the 30^th May 2016 almost a year and two months after the action was instituted.  It is in my view inconceivable that it took a whole year for the applicant to realise that she had not given her attorney and counsel correct instructions on the plea.

[7] The Applicant has failed to persuade me that there are reasonable prospects of success of the appeal.  Accordingly the application must fail.

 

ORDER

[8]

8.1 The application for leave to appeal is refused.

8.2 The Applicant is ordered to pay the costs of the application.

DATED at JOHANNESBURG on this the 3^rd day of FEBRUARY 2017.

 

__________________________________________

M A MAKUME

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

DATE OF HEARING                                   2^nd FEBRUARY 2017

DATE OF JUDGMENT                               FEBRUARY 2017

FOR APPLICANT                                       ADV PRETORIUS

INSTRUCTED BY                                      STAN FANAROFF & ASSOCIATES

                                                                          107 Oxford Road

                                                                          Rosebank, Johannesburg

                                                                          Tel:  (011) 880 2091

                                                                          Ref:  H40.7/Ms S Henning/Yvonne

FOR RESPONDENT                                 ADV WILSON

INSTRUCTED BY                                      BROOKS & BRAADTVEDT INC

                                                                          203 Jan Smuts Avenue

                                                                          Parktown North

                                                                          Johannesburg

                                                                          Tel:  (011) 788 7707

                                                                          Ref:  Mr A Brooks/1967

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