Francois v Baker, In re: Baker v Francois (A260/2012) [2013] ZAWCHC 71 (10 May 2013)

Francois v Baker, In re: Baker v Francois (A260/2012) [2013] ZAWCHC 71 (10 May 2013)

The appellant failed to comply with the procedural requirements of rule 50 by not delivering the application for allocation of a hearing date within the prescribed period and by failing to file a correct and complete record in duplicate. No application for condonation was made, nor was any good cause shown for the non-compliance. The registrar was not empowered to allocate a hearing date in the absence of compliance with rule 50, and the appeal was not properly prosecuted within the stipulated 60-day period. Consequently, the appeal is deemed to have lapsed. The appellant's persistent disregard for procedural rules and failure to provide any explanation for non-compliance justify a...

Citation
[2013] ZAWCHC 71
Parties
Applicant: Calvin Mervyn Francois; Respondent: Tania Barker; Appellant: Tania Barker; Respondent: Calvin Mervyn Francois
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 May 2013
Case Number
A260/2012
Procedural Posture
Civil Appeal / Application to Declare Appeal Lapsed
Outcome
The appeal is declared to have lapsed and the appellant is ordered to pay the respondent's costs on an attorney and client scale.
Judges
J I Cloete, A J Smit
Legal Topics
Appeal Lapse, Condonation, Costs Order, Record Preparation
Civil Procedure Appeal Lapse Condonation Costs Order Record Preparation

Case Brief

Summary, issues, holding and outcome

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Parties

Calvin Mervyn Francois

Applicant

Tania Barker

Respondent

Tania Barker

Appellant

Calvin Mervyn Francois

Respondent

Procedural Posture

Civil Appeal / Application to Declare Appeal Lapsed

Legal Issues

  1. 1 Whether the appellant complied with the procedural requirements for prosecuting an appeal under rule 50.
  2. 2 Whether the appeal has lapsed due to non-compliance with time limits and record requirements.
  3. 3 Whether condonation for non-compliance should be granted in the absence of an application and good cause.

Ratio Decidendi

The appellant failed to comply with the procedural requirements of rule 50 by not delivering the application for allocation of a hearing date within the prescribed period and by failing to file a correct and complete record in duplicate. No application for condonation was made, nor was any good cause shown for the non-compliance. The registrar was not empowered to allocate a hearing date in the absence of compliance with rule 50, and the appeal was not properly prosecuted within the stipulated 60-day period. Consequently, the appeal is deemed to have lapsed. The appellant's persistent disregard for procedural rules and failure to provide any explanation for non-compliance justify a...

Court Disposition

The appeal is declared to have lapsed and the appellant is ordered to pay the respondent's costs on an attorney and client scale.

Orders

  • It is declared that the appeal has lapsed.
  • The appellant shall pay the respondent's costs in the application to declare the appeal lapsed, together with costs incurred in respect of the appeal, including those relating to the removal of the appeal from the roll on 16 November 2012, on the scale as between attorney and client.