Barkhuizen-Barbosa N.O v Phelemba and Others (A35/2020) [2024] ZAMPMBHC 8 (1 February 2024)

Barkhuizen-Barbosa N.O v Phelemba and Others (A35/2020) [2024] ZAMPMBHC 8 (1 February 2024)

The court found that, although it was empowered to adjudicate the condonation and reinstatement application on the basis of its inherent jurisdiction and the interests of justice, the applicant failed to provide an adequate explanation for the inordinate delay in prosecuting the appeal and in launching the condonation application. The applicant's attorney's lack of appreciation of the applicable rules did not constitute a sufficient excuse, and the applicant herself, being a senior legal practitioner, should have intervened. The delay was extreme, and the explanation did not cover the entire period. In such circumstances, condonation may be refused regardless of the prospects of success....

Citation
[2024] ZAMPMBHC 8
Parties
Applicant: Gretchen Barkhuizen-Barbosa N.O.; Respondent: Christina Phelemba; Respondent: Occupants of the house known as 8[...] D[...] Road, Hazeyview Vakansie Dorp; Respondent: Mbombel Local Municipality
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
1 February 2024
Case Number
A35/2020
Procedural Posture
Civil Appeal / Application for Condonation and Reinstatement of Lapsed Appeal
Outcome
Application for condonation and reinstatement of appeal dismissed.
Judges
Greyling-Coetzer
Legal Topics
Condonation, Reinstatement of Appeal, Uniform Rules of Court, Eviction Under Pie Act, Costs Against Executor
Civil Procedure Land and Property Condonation Reinstatement of Appeal Uniform Rules of Court Eviction Under Pie Act Costs Against Executor

Case Brief

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Parties

Gretchen Barkhuizen-Barbosa N.O.

Applicant

Christina Phelemba

Respondent

Occupants of the house known as 8[...] D[...] Road, Hazeyview Vakansie Dorp

Respondent

Mbombel Local Municipality

Respondent

Procedural Posture

Civil Appeal / Application for Condonation and Reinstatement of Lapsed Appeal

Legal Issues

  1. 1 Whether the High Court (motion court) is empowered to adjudicate the unopposed condonation and reinstatement application under Rule 49(6).
  2. 2 Whether the applicant has made out a case for condonation and reinstatement of the appeal after an inordinate delay.
  3. 3 Whether the explanation for the delay in prosecuting the appeal is adequate.

Ratio Decidendi

The court found that, although it was empowered to adjudicate the condonation and reinstatement application on the basis of its inherent jurisdiction and the interests of justice, the applicant failed to provide an adequate explanation for the inordinate delay in prosecuting the appeal and in launching the condonation application. The applicant's attorney's lack of appreciation of the applicable rules did not constitute a sufficient excuse, and the applicant herself, being a senior legal practitioner, should have intervened. The delay was extreme, and the explanation did not cover the entire period. In such circumstances, condonation may be refused regardless of the prospects of success....

Court Disposition

Application for condonation and reinstatement of appeal dismissed.

Orders

  • The applicant's condonation application and reinstatement application is dismissed.
  • No order as to costs.