Brown and Another v Papadakis NO and Another (13420/2007) [2011] ZAWCHC 150 (17 February 2011)

Brown and Another v Papadakis NO and Another (13420/2007) [2011] ZAWCHC 150 (17 February 2011)

The court held that, in terms of established authority, an order made by a judge in chambers under rule 48 is not appealable unless specifically provided by statute. The procedure for review of taxation is designed to be efficient and cost-effective, and does not violate the right to a public hearing under section 34 of the Constitution. The applicants and their attorney had adequate opportunities to make submissions, and the discretion exercised by the judge did not unjustifiably limit their constitutional rights. The request to postpone the application to join the Minister of Justice for a constitutional challenge was declined, as the rule falls within the purview of the Rules Board for...

Citation
[2011] ZAWCHC 150
Parties
Applicant: Joseph Arthur Walter Brown; Applicant: Susan Jennifer Brown; Respondent: George Papadakis N.O.; Respondent: Dines Chandra Gihwala N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
13420/2007
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review of Taxation in Chambers
Outcome
Application for leave to appeal struck from the roll with costs, payable by Mr Khan, the applicants' attorney of record.
Judges
Jl Cloete
Legal Topics
Review of Taxation, Leave to Appeal, Costs Orders, Constitutionality of Procedure
Civil Procedure Review of Taxation Leave to Appeal Costs Orders Constitutionality of Procedure

Case Brief

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Parties

Joseph Arthur Walter Brown

Applicant

Susan Jennifer Brown

Applicant

George Papadakis N.O.

Respondent

Dines Chandra Gihwala N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review of Taxation in Chambers

Legal Issues

  1. 1 Is an order made by a judge in chambers in terms of rule 48 appealable?
  2. 2 Do the provisions of rule 48(6) unjustifiably attenuate the costs debtor's rights under section 34 of the Constitution?
  3. 3 Should the application for leave to appeal be postponed to join the Minister of Justice for a constitutional challenge?

Ratio Decidendi

The court held that, in terms of established authority, an order made by a judge in chambers under rule 48 is not appealable unless specifically provided by statute. The procedure for review of taxation is designed to be efficient and cost-effective, and does not violate the right to a public hearing under section 34 of the Constitution. The applicants and their attorney had adequate opportunities to make submissions, and the discretion exercised by the judge did not unjustifiably limit their constitutional rights. The request to postpone the application to join the Minister of Justice for a constitutional challenge was declined, as the rule falls within the purview of the Rules Board for...

Court Disposition

Application for leave to appeal struck from the roll with costs, payable by Mr Khan, the applicants' attorney of record.

Orders

  • The application for leave to appeal is struck from the roll with costs.
  • Such costs are to be paid by Mr M R Khan, the applicants' attorney of record.