Malimabe v Morake (A50/2005) [2007] ZAFSHC 150 (13 December 2007)

Malimabe v Morake (A50/2005) [2007] ZAFSHC 150 (13 December 2007)

The court held that the appellant's application under Rule 27(5) was not brought within the prescribed 15-day period following the close of pleadings. The appellant filed the application nearly a year after the close of pleadings, which was well outside the time allowed by the rule. Therefore, the appellant was not entitled to seek dismissal of the respondent's claim under Rule 27(5). The subsequent setting down of the matter for hearing by the respondent did not cure the defect or revive the appellant's right to bring the application. The court a quo correctly dismissed the application with costs.

Citation
[2007] ZAFSHC 150
Parties
Appellant: L J Malimabe; Respondent: S W Morake
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 December 2007
Case Number
A50/2005
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application Under Rule 27(5)
Outcome
Appeal dismissed with costs.
Judges
Beckley R, Mocumie WND R
Legal Topics
Rule 27 5 Application, Dismissal for Delay, Costs Order
Civil Procedure Rule 27 5 Application Dismissal for Delay Costs Order

Case Brief

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Parties

L J Malimabe

Appellant

S W Morake

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Application Under Rule 27(5)

Legal Issues

  1. 1 Whether the appellant was entitled to apply for dismissal of the respondent's claim under Rule 27(5) after the prescribed period had expired.
  2. 2 Whether the court a quo correctly dismissed the application for dismissal with costs.

Ratio Decidendi

The court held that the appellant's application under Rule 27(5) was not brought within the prescribed 15-day period following the close of pleadings. The appellant filed the application nearly a year after the close of pleadings, which was well outside the time allowed by the rule. Therefore, the appellant was not entitled to seek dismissal of the respondent's claim under Rule 27(5). The subsequent setting down of the matter for hearing by the respondent did not cure the defect or revive the appellant's right to bring the application. The court a quo correctly dismissed the application with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.