Gxumisa v Moloto (A2023-022151) [2023] ZAGPJHC 982 (30 August 2023)
- Citation
- [2023] ZAGPJHC 982
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Moorcroft, Du Plessis
- Case number
- A2023-022151
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Moorcroft, Du Plessis
- Case number
- A2023-022151
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was not ripe for hearing because the appellant failed to provide a transcribed record and did not comply with the procedural requirements for enrolling the appeal. The respondent was not properly notified of the enrolment. In the interests of justice, the court determined that the appeal should be removed from the roll and postponed sine die, allowing the appellant an opportunity to obtain legal advice, comply with all requirements, and re-enrol the appeal. Costs were reserved.
Court disposition
Appeal removed from the roll; costs reserved; appellant may re-enrol after compliance.
Orders
- The appeal is removed from the roll.
- The costs are reserved.
02
Material facts
Parties
GXUMISA, BONDILE
Appellant Counsel: In personMOLOTO, PHUTI MERCY
Respondent Counsel: Mr Ungerer03
Procedural history
Posture
Civil Appeal / Appeal Hearing; Matter Not Ripe for Hearing; Appeal Removed From Roll
04
Questions and positions
Legal issues
- 01
Whether the appeal could proceed in the absence of a transcribed record.
- 02
Whether the appellant complied with procedural requirements for enrolling the appeal.
- 03
Whether justice would be served by striking the matter from the roll or postponing the appeal.
Party arguments
- Applicant
- The appellant, acting without legal representation, enrolled the appeal despite the absence of a transcribed record. No formal argument was presented regarding compliance with procedural requirements.
- Respondent
- The respondent, represented by counsel, argued that the respondent was unaware of the enrolment until the week before the hearing and that the appeal was not ripe for hearing due to the lack of a transcribed record and procedural compliance.
05
Court’s reasoning
Legal principles
- 01
Rule 50 of the Uniform Rules of Court
An appeal must be supported by a transcribed record and comply with procedural rules before being heard.
- 02
General principles of civil procedure
The court may postpone an appeal sine die to allow compliance with procedural requirements rather than striking it from the roll if justice so requires.
06
Ratio, limits and disposition
Ratio decidendi
The appeal was not ripe for hearing because the appellant failed to provide a transcribed record and did not comply with the procedural requirements for enrolling the appeal. The respondent was not properly notified of the enrolment. In the interests of justice, the court determined that the appeal should be removed from the roll and postponed sine die, allowing the appellant an opportunity to obtain legal advice, comply with all requirements, and re-enrol the appeal. Costs were reserved.
Obiter and limits
- The appellant is advised to seek assistance from the Legal Aid Board or a Law Clinic to ensure proper compliance with procedural requirements.
- Justice will not be done between the parties by striking the matter from the roll; postponement is more appropriate in these circumstances.
Court disposition
Appeal removed from the roll; costs reserved; appellant may re-enrol after compliance.
- The appeal is removed from the roll.
- The costs are reserved.
Source and reliance status
South Gauteng High Court, Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: A2023-022151
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
In the matter between:
GXUMISA, BONDILE Appellant and MOLOTO, PHUTI MERCY Respondent
JUDGMENT
MOORCROFT AJ [DU PLESSIS AJ CONCURRING]:
Summary
Order
[1] In this matter I make the following order:
1. The appeal is removed from the roll;
2. The costs are reserved.
[2] The reasons for the order follow below.
Introduction
[3] This appeal served before us on 10 August 2023. The appellant does not make use of legal representation and the appeal is not ripe for hearing: The evidence was not transcribed but the appellant nevertheless enrolled the appeal. The respondent’s counsel
advises that the respondent was not aware of the enrolment until the week before the appeal hearing.
[4] Justice will not be done between the parties by striking the matter from the roll and the appeal will therefore be postponed sine die (without a date for the hearing) to enable the appellant to obtain proper advice, to comply with all the requirements, and then to re-enrol the appeal.
[5] The appellant will be required to file the record of the proceedings in the lower court and to otherwise comply with the provisions of Rule 50 of the Uniform Rules of Court as well as Rule 6 of the Gauteng Rules before enrolling the matter. The appellant is advised to seek assistance from the Legal Aid Board or a Law Clinic.
[6] I therefore make the order as set out above.
J MOORCROFT
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
I agree and it is so ordered
W J DU PLESSIS
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting Judges whose names are reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 30 AUGUST 2023.
COUNSEL FOR APPELLANT:
IN
PERSON
INSTRUCTED BY: -
COUNSEL FOR RESPONDENT:
MR
UNGERER
INSTRUCTED BY:
KLOPPER
JONKER INC
DATE OF THE APPEAL: 10 AUGUST 2023
DATE OF JUDGMENT: 30 AUGUST 2023
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