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South Africa Order

North Gauteng High Court, Pretoria

Mmusi v Standard Bank of South Africa Limited (6626/2020) [2022] ZAGPPHC 841 (25 October 2022)

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Research organized from the available case record

Source document

01

Holding and result

The court found that it had erred in dismissing the application for leave to appeal when the applicant failed to appear. The correct procedure in such circumstances is to strike the matter off the roll for non-appearance, rather than dismissing it. The court recalled its previous order under Rule 42(1)(a) and substituted it with an order striking the matter off the roll. The applicant was ordered to pay costs on an attorney and client scale and required to file substantial heads of argument for condonation within fifteen days before any further application for leave to appeal.

Court disposition

Application for leave to appeal struck off the roll for non-appearance; costs awarded against applicant on attorney and client scale.

Orders

  • The matter is struck off the roll for non-appearance.
  • The applicant must file substantial heads of argument for condonation within fifteen days before filing for leave to appeal.
  • The applicant is to pay the costs on an attorney and client scale.

02

Material facts

Parties

Mpho Abel Mmusi

Applicant

Standard Bank of South Africa Limited

Respondent Counsel: Z Schoeman

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal; Reconsideration of Prior Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant did not appear in court and did not submit any heads of argument or explanation for his absence. No arguments were presented on his behalf.
Respondent
The respondent argued that the application for leave to appeal should be dismissed with costs on an attorney and client scale due to the applicant's failure to appear and prosecute his application.

05

Court’s reasoning

  1. 01

    Rule 42(1)(a) Uniform Rules of Court

    A court may recall or vary its own order under Rule 42(1)(a) if it was granted in error or in the absence of a party.

  2. 02

    General principles of civil procedure

    Where an applicant fails to appear or prosecute an application, the matter may be struck off the roll rather than dismissed.

06

Ratio, limits and disposition

Ratio decidendi

The court found that it had erred in dismissing the application for leave to appeal when the applicant failed to appear. The correct procedure in such circumstances is to strike the matter off the roll for non-appearance, rather than dismissing it. The court recalled its previous order under Rule 42(1)(a) and substituted it with an order striking the matter off the roll. The applicant was ordered to pay costs on an attorney and client scale and required to file substantial heads of argument for condonation within fifteen days before any further application for leave to appeal.

Obiter and limits

  • The court emphasized the importance of parties informing the court of their non-appearance to avoid unnecessary costs and procedural delays.
  • The judgment was delivered electronically and is deemed handed down on the date indicated, in accordance with current practice.

Court disposition

Application for leave to appeal struck off the roll for non-appearance; costs awarded against applicant on attorney and client scale.

  • The matter is struck off the roll for non-appearance.
  • The applicant must file substantial heads of argument for condonation within fifteen days before filing for leave to appeal.
  • The applicant is to pay the costs on an attorney and client scale.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Order

[2022] ZAGPPHC 841

IN

THE

HIGH

COURT

OF

SOUTH

AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 6626/2020

REPORTABLE:

NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

25 OCTOBER 2022

In the matter between:

MPHO

ABEL MMUSI

APPLICANT

and

THE

STANDARD BANK

OF SOUTH AFRICA

LIMITED RESPONDENT

JUDGMENT

MOGALE,

AJ

INTRODUCTION

[1] On 25 October 2022, the applicant brought an application for Leave to Appeal an order granted on 02nd September 2021.

[2] The respondent appeared, but the applicant failed to appear in court. The applicant also failed to inform the court of his non-appearance.

[3] The respondent applied to this court for Leave to Appeal to be dismissed with costs, and such be on an attorney and client scale.

[4] On 25 October 2022, I handed down the order in terms of which I dismissed the application with costs.

[5] I find that I erred by dismissing the application for Leave to Appeal instead of striking off the application due to the non-appearance by the applicant

[6] In light of the above error, I hereby recall my order and invoke the provisions of Rule 42(1)(a) and make the following order:

I accordingly make the following order:

ORDER

1. The matter is struck off the roll for non-appearance.

2. The applicant has to file substantial heads of arguments for Condonation within fifteen (15) days after this order is granted before filing for Leave to Appeal.

3. The applicant is to pay the costs on an attorney and client scale.

K

J MOGALE

ACTING JUDGE OF THE GAUTENG DIVISION,

PRETORIA

Electronically submitted.

Delivered: This Judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 25 October 2025.

Date of hearing: The matter was heard by way of video conferencing or otherwise; the matter may be determined accordingly. The matter was set down for a court date of 07 September 2021.

Date of the Order: 25 October 2022

Heard on: 25

October 2022

For the Applicants : No

Appearance

For the Respondent : Advocate

Z Schoeman

Date of the Order: 25

October 2022

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rule 42(1)(a) Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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