argument, neither application was even alluded to in the respondents’ oral argument in this Court, despite the fact that both applications were comprehensively and vigorously opposed in the applicants’ written argument, in which both are characterised as being without merit, constituting an abuse and their dismissal sought with costs on an attorney and own client scale.
Both these applications have, as their ultimate objective, the nullification of the High Court order and a re-hearing of the issue on the basis of the respondents’ answering affidavit. The first application is wholly misconceived. Short of setting aside on appeal an order made by another court and substituting a different order, this Court has no jurisdiction to make an order on behalf of another court properly seized of a matter or to condone, on behalf of such court, non-compliance with the rules of procedure to which such court is subject. The second application and the ground of appeal which it seeks to introduce, are without merit, for the reasons which follow.
A court of appeal is not entitled to set aside the decision of a lower court granting or refusing a postponement in the exercise of its discretion merely because the court of appeal would itself, on the facts of the matter before the lower court, have come to a different conclusion; it may interfere only when it appears that the lower court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. On its face, the
- See R v Zackey 1945 AD 505 at 511–2; Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398–9; and Myburgh Transport v Botha t/a S A Truck Bodies 1991 (3) SA 310 (NmSC) at 314 H – 315 A and the authorities there cited.