Diseko v Anthony Berlowitz Attorneys and Others (1580/2020) [2023] ZAFSHC 2 (10 January 2023)

Diseko v Anthony Berlowitz Attorneys and Others (1580/2020) [2023] ZAFSHC 2 (10 January 2023)

The court found that the applicant was properly cited and participated fully in both the business rescue and leave to appeal applications. Her legal representation and submission of affidavits indicated her presence in the proceedings. The costs orders were not granted in her absence, and the judge exercised discretion appropriately. The applicant failed to demonstrate that another court would reach a different decision or that the judgment was granted erroneously under Rule 42(1)(a). The application for leave to appeal did not meet the higher threshold required by Section 17(1) of the Superior Courts Act, and no compelling reason was shown for the appeal to be heard.

Citation
[2023] ZAFSHC 2
Parties
Applicant: Neo Khumo Diseko; Respondent: Anthony Berlowitz Attorneys; Respondent: Voltex (Pty) Ltd t/a Lighting Structures and Atlas Group; Respondent: ABSA Bank; Respondent: Theresa van der Merwe
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 January 2023
Case Number
1580/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
Molitsoane
Legal Topics
Rescission of Judgment, Costs Orders, Rule 42 1 a, Leave to Appeal
Civil Procedure Rescission of Judgment Costs Orders Rule 42 1 a Leave to Appeal

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Neo Khumo Diseko

Applicant

Anthony Berlowitz Attorneys

Respondent

Voltex (Pty) Ltd t/a Lighting Structures and Atlas Group

Respondent

ABSA Bank

Respondent

Theresa van der Merwe

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the applicant established grounds for rescission of the costs orders under Rule 42(1)(a).
  2. 2 Whether the costs orders were granted in the applicant's absence.
  3. 3 Whether another court would reach a different decision on the rescission application.

Ratio Decidendi

The court found that the applicant was properly cited and participated fully in both the business rescue and leave to appeal applications. Her legal representation and submission of affidavits indicated her presence in the proceedings. The costs orders were not granted in her absence, and the judge exercised discretion appropriately. The applicant failed to demonstrate that another court would reach a different decision or that the judgment was granted erroneously under Rule 42(1)(a). The application for leave to appeal did not meet the higher threshold required by Section 17(1) of the Superior Courts Act, and no compelling reason was shown for the appeal to be heard.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.