Mosselbaai Boeredienste (Pty) Ltd vs. OKB Motors - (09 Jun 2023)

Strong prospects of success may trump an unsatisfactory explanation for the delay

Civil

The appeal revolved around an inter-dealership agreement between the applicant and respondent (plaintiff and defendant in the court a quo) for the purchase of a motor vehicle. The motor vehicle was purchased and delivered, and the purchase price transferred. However, the purchase price was never received as the provided invoice was intercepted and altered by a third party who ultimately obtained receipt of the money. The proof of payment sent by the defendant was again intercepted by the same third party who altered the fraudulent payment details to the correct details, causing the defendant to believe that the payment was correctly made. Proceedings commenced in the magistrates’ court (court a quo), which dismissed the matter. It proceeded upon appeal to the high court.

However, a party who wished to pursue an appeal to the high court should have, complied with the rules regulating appeal proceedings. The high court dismissed the application for condonation and reinstatement of the appeal on the grounds that there were no reasonable prospects of success.

Principally, where special leave is sought, the existence of reasonable prospects of success is insufficient – something more, by way of special circumstances was required. The principles underlying an application for condonation, in the context of a reinstatement of an appeal, has always been that the court had a discretion which should have been exercised judicially.

The appeal hinged on four considerations. The first was that the respondent, in the court a quo, raised the defence of estoppel with regards to the negligent misrepresentation of the banking details. A material contradiction relevant to this consideration was not considered by the court a quo. Second, the court a quo failed to consider whether the alleged negligence was the proximate cause of the payment having been electronically transferred by the defendant into the incorrect banking account. Third, the court a quo failed to consider whether the damage or loss that was caused by the third party was reasonably foreseeable and fourth, it was unclear whether the debtor ought to have remained liable for payment until such payment had been credited to the creditors account.

It is trite that, strong prospects of success can often overcome a poor explanation for any delays. Differently stated, strong prospects of success may trump an unsatisfactory explanation for the delay. The plaintiff established reasonable prospects of success on appeal and that the matter should be heard by a full court on appeal. The order of the high court was replaced with one granting condonation for failure to comply with the provisions of the rules and reinstated the appeal.

Tags : PROVISION COMPLIANCE DELAY