Harris and Another v Burger N.O. and Another (786/2017) [2017] ZAFSHC 133 (21 August 2017)

Harris and Another v Burger N.O. and Another (786/2017) [2017] ZAFSHC 133 (21 August 2017)

The court found that, although the applicants were in default for failing to file their answering affidavit, the matter remained opposed and should not have been placed on the unopposed motion court roll. The court acknowledged that it had committed a procedural irregularity by entertaining the matter as unopposed, which deprived the applicants of procedural fairness. As a result, the court concluded that there was a reasonable prospect of success on appeal and granted leave to appeal to the full bench of the division.

Citation
[2017] ZAFSHC 133
Parties
Applicant: Rudolf Johannes Harris; Applicant: Rachel Sophia Elizabeth Harris; Respondent: Zander Chris Burger N.O.; Respondent: The Master of the FS High Court
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 August 2017
Case Number
786/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Judgment in Main Application
Outcome
Leave to appeal granted to the full bench of the division; costs to be costs in the appeal.
Judges
MH Rampai
Legal Topics
Practice Directive Non Compliance, Unopposed Motion Roll, Procedural Irregularity, Leave to Appeal
Civil Procedure Practice Directive Non Compliance Unopposed Motion Roll Procedural Irregularity Leave to Appeal

Case Brief

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Parties

Rudolf Johannes Harris

Applicant

Rachel Sophia Elizabeth Harris

Applicant

Zander Chris Burger N.O.

Respondent

The Master of the FS High Court

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Judgment in Main Application

Legal Issues

  1. 1 Whether the court had jurisdiction to entertain an opposed matter on the unopposed motion court roll.
  2. 2 Whether procedural irregularity occurred by hearing the matter as unopposed despite opposition being signalled.
  3. 3 Whether leave to appeal should be granted due to procedural irregularities.

Ratio Decidendi

The court found that, although the applicants were in default for failing to file their answering affidavit, the matter remained opposed and should not have been placed on the unopposed motion court roll. The court acknowledged that it had committed a procedural irregularity by entertaining the matter as unopposed, which deprived the applicants of procedural fairness. As a result, the court concluded that there was a reasonable prospect of success on appeal and granted leave to appeal to the full bench of the division.

Court Disposition

Leave to appeal granted to the full bench of the division; costs to be costs in the appeal.

Orders

  • The applicants' application for condonation for late filing of heads of argument is granted.
  • No order as to costs regarding the condonation application.