Cliffendale Villas Body Corporate v Mbowane (28013/19) [2022] ZAGPPHC 144 (8 March 2022)

Cliffendale Villas Body Corporate v Mbowane (28013/19) [2022] ZAGPPHC 144 (8 March 2022)

The court held that the application to stay the adjudication award cannot be decided until the applicant has applied for and been granted condonation and reinstatement of the appeal. The applicant's failure to prosecute the appeal resulted in its lapse, and the court cannot disregard the expressed intention to reinstate. However, fairness to the respondent requires that the applicant act promptly. The application is stayed pending the applicant's action, with costs awarded against the applicant for its lackadaisical approach.

Citation
[2022] ZAGPPHC 144
Parties
Applicant: Cliffendale Villas Body Corporate; Respondent: Alfred Theodore Mbowane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 March 2022
Case Number
28013/19
Procedural Posture
Stay Application / Application for Stay of Adjudication Award Pending Appeal
Outcome
Application stayed pending the applicant's condonation and reinstatement of appeal; costs awarded against the applicant.
Judges
E van der Schyff
Legal Topics
Stay of Execution, Condonation, Community Schemes Ombud Service Act, Appeal Lapse
Civil Procedure Stay of Execution Condonation Community Schemes Ombud Service Act Appeal Lapse

Case Brief

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Parties

Cliffendale Villas Body Corporate

Applicant

Alfred Theodore Mbowane

Respondent

Procedural Posture

Stay Application / Application for Stay of Adjudication Award Pending Appeal

Legal Issues

  1. 1 Whether the adjudication award should be stayed pending the finalisation of the applicant's appeal.
  2. 2 Whether the applicant's failure to prosecute the appeal justifies a stay of execution.
  3. 3 Whether condonation and reinstatement of the appeal should be considered before deciding the stay application.

Ratio Decidendi

The court held that the application to stay the adjudication award cannot be decided until the applicant has applied for and been granted condonation and reinstatement of the appeal. The applicant's failure to prosecute the appeal resulted in its lapse, and the court cannot disregard the expressed intention to reinstate. However, fairness to the respondent requires that the applicant act promptly. The application is stayed pending the applicant's action, with costs awarded against the applicant for its lackadaisical approach.

Court Disposition

Application stayed pending the applicant's condonation and reinstatement of appeal; costs awarded against the applicant.

Orders

  • This application is stayed pending the applicant launching an application for condonation and reinstatement of the appeal within 15 days of this order, failing which the respondent may re-enrol the application for hearing.
  • If the applicant complies, the court will hear the condonation application and may grant relief.