Barbaglia v Aphane N.O. and Others (09911/2021) [2022] ZAGPJHC 197 (4 April 2022)

Barbaglia v Aphane N.O. and Others (09911/2021) [2022] ZAGPJHC 197 (4 April 2022)

The court found that the order granted on 10 March 2022 is interim and not final, as it does not determine the rights of the parties regarding the validity of the will dated 26 September 2017 nor does it dispose of a substantial portion of the relief sought in the main action. The application for leave to appeal was dismissed because there are no reasonable prospects that another court would reach a different conclusion. The conduct of the third respondent in involving the fourth respondent in the appeal proceedings was found to be an abuse of process, warranting a punitive costs order against the first and third respondents.

Citation
[2022] ZAGPJHC 197
Parties
Applicant: Silvana Ida Barbaglia; Respondent: Bernard Aphane N.O.; Respondent: Charl Edward Anderson N.O.; Respondent: Michael Antinio Vincenzo Barbaglia; Respondent: Pabar (Proprietary) Limited; Respondent: Gregory Massimo Barbaglia
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 April 2022
Case Number
09911/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Interim Order
Outcome
Application for leave to appeal dismissed with punitive costs against first and third respondents.
Judges
Twala M L
Legal Topics
Appealability of Interim Orders, Administration of Deceased Estates, Costs Punitive Scale
Civil Procedure Land and Property Appealability of Interim Orders Administration of Deceased Estates Costs Punitive Scale

Case Brief

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Parties

Silvana Ida Barbaglia

Applicant

Bernard Aphane N.O.

Respondent

Charl Edward Anderson N.O.

Respondent

Michael Antinio Vincenzo Barbaglia

Respondent

Pabar (Proprietary) Limited

Respondent

Gregory Massimo Barbaglia

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Interim Order

Legal Issues

  1. 1 Whether the interim order granted on 10 March 2022 is final or has the effect of a final order.
  2. 2 Whether leave to appeal should be granted against an interim order.
  3. 3 Whether the first and third respondents should be liable for costs on a punitive scale.

Ratio Decidendi

The court found that the order granted on 10 March 2022 is interim and not final, as it does not determine the rights of the parties regarding the validity of the will dated 26 September 2017 nor does it dispose of a substantial portion of the relief sought in the main action. The application for leave to appeal was dismissed because there are no reasonable prospects that another court would reach a different conclusion. The conduct of the third respondent in involving the fourth respondent in the appeal proceedings was found to be an abuse of process, warranting a punitive costs order against the first and third respondents.

Court Disposition

Application for leave to appeal dismissed with punitive costs against first and third respondents.

Orders

  • The application for leave to appeal is dismissed.
  • The first and third respondents are equally liable to pay the costs of this application on the scale as between attorney and client, including the costs of two counsel.