Moshabane v Mtshagi (Kave) and Others - Application for Leave to Appeal (70/2022) [2023] ZAECQBHC 39 (20 June 2023)

Moshabane v Mtshagi (Kave) and Others - Application for Leave to Appeal (70/2022) [2023] ZAECQBHC 39 (20 June 2023)

The court found that the grounds advanced for leave to appeal were without merit. The applicant's explanation for the delay in filing was unsatisfactory and did not justify condonation. The amendment to the order was a correction of an omission and did not constitute an abuse of power or violate the functus officio principle. The costs order was justified, and the interlocutory nature of the order meant that any appeal would have no practical effect. The applicant, a legal practitioner, should have known the application was baseless, and her conduct during proceedings was indecorous. The application for leave to appeal was dismissed with costs, and the transcript of the proceedings was...

Citation
[2023] ZAECQBHC 39
Parties
Applicant: Thandiwe Angela Moshabane; Respondent: Pamela Nosipho Mtshagi (Kave); Respondent: Remax Estate Agent; Respondent: Xhanti Mtongana; Respondent: Zonke Budaza Inc.; Respondent: Zonke Budaza; Respondent: Simone Jonker; Respondent: Master of the High Court
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
20 June 2023
Case Number
70/2022
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Interlocutory Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
T.V Norman
Legal Topics
Leave to Appeal, Condonation, Costs Order, Interlocutory Order, Functus Officio, Court Composition
Civil Procedure Leave to Appeal Condonation Costs Order Interlocutory Order Functus Officio Court Composition

Case Brief

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Parties

Thandiwe Angela Moshabane

Applicant

Pamela Nosipho Mtshagi (Kave)

Respondent

Remax Estate Agent

Respondent

Xhanti Mtongana

Respondent

Zonke Budaza Inc.

Respondent

Zonke Budaza

Respondent

Simone Jonker

Respondent

Master of the High Court

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Interlocutory Order

Legal Issues

  1. 1 Whether the court erred in sitting as a single judge for the postponement application when the main issue related to the validity of a will.
  2. 2 Whether the amendment of the order by the registrar constituted an abuse of power and violated the functus officio principle.
  3. 3 Whether condonation for the late filing of the application for leave to appeal should be granted.

Ratio Decidendi

The court found that the grounds advanced for leave to appeal were without merit. The applicant's explanation for the delay in filing was unsatisfactory and did not justify condonation. The amendment to the order was a correction of an omission and did not constitute an abuse of power or violate the functus officio principle. The costs order was justified, and the interlocutory nature of the order meant that any appeal would have no practical effect. The applicant, a legal practitioner, should have known the application was baseless, and her conduct during proceedings was indecorous. The application for leave to appeal was dismissed with costs, and the transcript of the proceedings was...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.
  • The Registrar is directed to forward the transcribed record of the proceedings of 9 June 2023 to the Legal Practice Council, Eastern Cape within fourteen (14) days hereof.