Metier Mixed Concrete (Pty) Ltd v Daxedward Goose (10145/15) [2016] ZAKZPHC 32 (1 April 2016)

Metier Mixed Concrete (Pty) Ltd v Daxedward Goose (10145/15) [2016] ZAKZPHC 32 (1 April 2016)

The respondent failed to prosecute his appeal within the time periods prescribed by Rule 50 of the Uniform Rules of Court and Magistrates' Courts Rule 51(9), and did not apply for condonation for his lateness. The court found that the appeal had lapsed as a matter of law. The argument that only the appeal court can declare an appeal to have lapsed was rejected; a single judge sitting as a court of first instance is competent to make such a declaration, provided the merits are not being canvassed. Section 18 of the Superior Courts Act was found to be irrelevant to the present application, as the applicant was not seeking enforcement pending appeal but rather a declaration of lapsing. The...

Citation
[2016] ZAKZPHC 32
Parties
Applicant: Metier Mixed Concrete (Pty) Ltd; Respondent: Dax Edward Goose
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
1 April 2016
Case Number
10145/15
Procedural Posture
Declaratory Application / First Instance Judgment
Outcome
Application granted. The respondent's appeal has lapsed. Costs awarded against the respondent on an attorney-client scale.
Judges
M R Chetty
Legal Topics
Appeal Lapsing, Condonation, Magistrates Court Rules, Attorney Client Costs
Civil Procedure Appeal Lapsing Condonation Magistrates Court Rules Attorney Client Costs

Case Brief

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Parties

Metier Mixed Concrete (Pty) Ltd

Applicant

Dax Edward Goose

Respondent

Procedural Posture

Declaratory Application / First Instance Judgment

Legal Issues

  1. 1 Whether the respondent's appeal noted under case 9/2012 in the KwaZulu-Natal High Court, Pietermaritzburg, has lapsed due to failure to prosecute within prescribed time periods.
  2. 2 Whether a single judge has jurisdiction to declare an appeal to have lapsed.
  3. 3 Whether the applicant is entitled to costs on an attorney-client scale.

Ratio Decidendi

The respondent failed to prosecute his appeal within the time periods prescribed by Rule 50 of the Uniform Rules of Court and Magistrates' Courts Rule 51(9), and did not apply for condonation for his lateness. The court found that the appeal had lapsed as a matter of law. The argument that only the appeal court can declare an appeal to have lapsed was rejected; a single judge sitting as a court of first instance is competent to make such a declaration, provided the merits are not being canvassed. Section 18 of the Superior Courts Act was found to be irrelevant to the present application, as the applicant was not seeking enforcement pending appeal but rather a declaration of lapsing. The...

Court Disposition

Application granted. The respondent's appeal has lapsed. Costs awarded against the respondent on an attorney-client scale.

Orders

  • The appeal noted by the respondent Dax Edward Goose in respect of the proceedings between the applicant and the respondent in the Magistrate's Court for the District of Pinetown, under case number 9329/2009, has lapsed.
  • The respondent is to pay the costs of this application on an attorney-client scale.