Khoza v First Rand Bank Limited: In re: First Rand Bank Limited v Khoza (21311/2017) [2022] ZAGPJHC 797 (12 October 2022)
- Citation
- [2022] ZAGPJHC 797
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Sutherland DJP
- Case number
- 21311/2017
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Sutherland DJP
- Case number
- 21311/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the application for leave to appeal had not been prosecuted for an extended period and did not set out any grounds for appeal, failing to comply with rule 49 of the rules of court. The absence of any attempt by the applicant to advance the application for nearly three years, coupled with the lack of substantive grounds, rendered the application fatally defective. Accordingly, the application for leave to appeal was dismissed for non-prosecution and non-compliance with procedural rules. The court further held that it was appropriate for the applicant to bear the costs of the application.
Court disposition
Application for leave to appeal dismissed for non-prosecution and non-compliance with rule 49. Costs awarded against the applicant.
Orders
- The application for leave to appeal is dismissed.
- The applicant, Mr Khoza, is ordered to pay the costs of this application.
02
Material facts
Parties
Given Khoza
Applicant Counsel: Adv Raymond PetersonFirst Rand Bank Limited
RespondentFirst Rand Bank Limited
PlaintiffGiven Khoza
Defendant03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Unopposed Motion Court Order
04
Questions and positions
Legal issues
- 01
Whether the application for leave to appeal should be dismissed for non-prosecution.
- 02
Whether the application for leave to appeal complies with rule 49 of the rules of court.
- 03
Whether the applicant should be ordered to pay the costs of the application.
Party arguments
- Applicant
- The applicant, Given Khoza, lodged a notice of application for leave to appeal against the order made by Tsoka J on 1 February 2018. However, the application did not specify any grounds for appeal and no further steps were taken to prosecute the application for nearly three years.
- Respondent
- The respondent, First Rand Bank Limited, argued that the application for leave to appeal should be dismissed due to non-prosecution and non-compliance with rule 49, and that the applicant should be ordered to pay the costs of the application.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 49
An application for leave to appeal must be prosecuted diligently and must set out the grounds relied upon, in compliance with rule 49 of the rules of court.
- 02
General principles of civil procedure
Failure to prosecute an application for leave to appeal or to comply with procedural requirements justifies dismissal of the application and a costs order against the applicant.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the application for leave to appeal had not been prosecuted for an extended period and did not set out any grounds for appeal, failing to comply with rule 49 of the rules of court. The absence of any attempt by the applicant to advance the application for nearly three years, coupled with the lack of substantive grounds, rendered the application fatally defective. Accordingly, the application for leave to appeal was dismissed for non-prosecution and non-compliance with procedural rules. The court further held that it was appropriate for the applicant to bear the costs of the application.
Obiter and limits
- The practice in the unopposed motion court is to grant orders without reasons, which may complicate subsequent applications for leave to appeal.
- A generous interpretation of procedural rules cannot cure a complete absence of grounds for appeal.
Court disposition
Application for leave to appeal dismissed for non-prosecution and non-compliance with rule 49. Costs awarded against the applicant.
- The application for leave to appeal is dismissed.
- The applicant, Mr Khoza, is ordered to pay the costs of this application.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NUMBER: 21311/2017
REPORTABLE:
NO
OF INTEREST TO OTHER JUDGES: NO
2022/10/12
In the matters between:
GIVEN
KHOZA
Applicant
and
FIRST
RAND BANK
LIMITED Respondent
In re:
FIRST
RAND BANK
LIMITED
Plaintiff
GIVEN
KHOZA
Defendant
This judgment has been delivered by being uploaded to the caselines profile on 12 October 2022 at 10h00 and communicated to the parties by email.
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
Sutherland
DJP
Introduction
[1] This an application for leave to appeal against an order made by Tsoka J on 1 February 2018. The matter was heard in the unopposed motion court and an order was given without reasons, as is the practice in that court. Eleven months elapsed and on 29 November 2019, a notice of application for leave to appeal was lodged by the defendant against whom the order had been made. After that date the defendant had made no attempts whatsoever to prosecute the application for leave to appeal.
[2] On 5 October 2022, notice of this hearing at the instance of the plaintiff was made and the matter comes before me on 12 October 2022. It is plain from the bare bones of the application for leave to appeal that no hint is given as to what grounds might be relied upon to support the application, and to that extent, it is problematic, even on a generous interpretation, that rule 49 of the rules of court have been complied with.
[3] In any event for reason of non-prosecution, the application itself deserves to be dismissed. The relief which is sought in terms of the draft order, is that the application for leave to appeal be dismissed and that Mr Khoza, the applicant for the application for leave to appeal should pay the costs of this application. This seems to be
wholly appropriate.
[4] In this circumstances:
(1) The order is made in terms of the draft order dated 12 October 2022, attached hereto.
Heard:
12 October 2022
Judgment:
12 October 2022
The Applicants were represented by: Adv Raymond Peterson
Instructed by:
Glover Kannieappan Incorporated
There was no appearance on behalf of the respondent.
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