Malema and Another v Afriforum NPC and Another (89196/2016) [2023] ZAGPPHC 11 (17 January 2023)

Malema and Another v Afriforum NPC and Another (89196/2016) [2023] ZAGPPHC 11 (17 January 2023)

The court held that the application for leave to appeal must fail for several reasons. First, the order sought to be appealed was granted by default, and in terms of established authority, such orders are not ordinarily appealable but rather subject to rescission. The applicants had already pursued rescission, which was dismissed, finalising the proceedings. Second, the application for condonation for the late filing of leave to appeal was defective, lacking a complete and reasonable explanation for the delay, as required by law. The affidavit supporting condonation did not cover the entire period of delay and failed to address the merits of the case. Third, the applicants' constitutional...

Citation
[2023] ZAGPPHC 11
Parties
Applicant: Julius Sello Malema; Applicant: Economic Freedom Fighters; Respondent: Afriforum NPC; Respondent: Afrisake NPC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 January 2023
Case Number
89196/2016
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against a Default Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
P M Mabuse
Legal Topics
Default Judgment, Leave to Appeal, Condonation, Freedom of Expression, Constitutionality of Statute, Incitement
Civil Procedure Constitutional Law Default Judgment Leave to Appeal Condonation Freedom of Expression Constitutionality of Statute Incitement

Case Brief

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Parties

Julius Sello Malema

Applicant

Economic Freedom Fighters

Applicant

Afriforum NPC

Respondent

Afrisake NPC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against a Default Order

Legal Issues

  1. 1 Whether leave to appeal can be granted against a default judgment.
  2. 2 Whether the application for condonation for late filing of leave to appeal meets the requirements.
  3. 3 Whether the underlying statutory provisions (Trespass Act and Riotous Assemblies Act) are unconstitutional as alleged.

Ratio Decidendi

The court held that the application for leave to appeal must fail for several reasons. First, the order sought to be appealed was granted by default, and in terms of established authority, such orders are not ordinarily appealable but rather subject to rescission. The applicants had already pursued rescission, which was dismissed, finalising the proceedings. Second, the application for condonation for the late filing of leave to appeal was defective, lacking a complete and reasonable explanation for the delay, as required by law. The affidavit supporting condonation did not cover the entire period of delay and failed to address the merits of the case. Third, the applicants' constitutional...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

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