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

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

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.

Citation
[2022] ZAGPPHC 841
Parties
Applicant: Mpho Abel Mmusi; Respondent: Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 October 2022
Case Number
6626/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal; Reconsideration of Prior Order
Outcome
Application for leave to appeal struck off the roll for non-appearance; costs awarded against applicant on attorney and client scale.
Judges
K J Mogale
Legal Topics
Leave to Appeal, Non Appearance, Rule 42, Costs Order, Condonation
Civil Procedure Leave to Appeal Non Appearance Rule 42 Costs Order Condonation

Case Brief

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Parties

Mpho Abel Mmusi

Applicant

Standard Bank of South Africa Limited

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the application for leave to appeal should be dismissed or struck off the roll due to the applicant's non-appearance.
  2. 2 Whether the court's previous order dismissing the application should be recalled under Rule 42(1)(a).
  3. 3 Whether costs should be awarded on an attorney and client scale.

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.

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.