Mynhardt and Another v Deventer and Others (033896/2023) [2024] ZAGPPHC 310 (3 April 2024)

Mynhardt and Another v Deventer and Others (033896/2023) [2024] ZAGPPHC 310 (3 April 2024)

The application for leave to appeal is dismissed because the grounds advanced are without merit. The right to anticipate the ex parte order on an urgent basis was explicitly provided for in the original order, and the court's discretion to hear the matter urgently was properly exercised. The applicants conceded that Rule 57(3)(b) was not complied with, as there were no affidavits from two medical practitioners who had recently examined the patient. This omission was fatal to the justification and continued existence of the ex parte order. There are no reasonable prospects of success or compelling reasons for the appeal to be heard.

Citation
[2024] ZAGPPHC 310
Parties
Applicant: Martha Christina Mynhardt; Applicant: Charles P Lochner obo Terthia Natanya van Deventer; Respondent: Lee van Deventer; Respondent: Annette Tetkje Stevens; Respondent: Magistrate RC Venter
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 April 2024
Case Number
033896/2023
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Reconsideration and Setting Aside of Ex Parte Order.
Outcome
Application for leave to appeal dismissed.
Judges
MKHABELA
Legal Topics
Ex Parte Orders, Rule 6 Urgent Applications, Leave to Appeal, Rule 57 Non Compliance
Civil Procedure Ex Parte Orders Rule 6 Urgent Applications Leave to Appeal Rule 57 Non Compliance

Case Brief

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Parties

Martha Christina Mynhardt

Applicant

Charles P Lochner obo Terthia Natanya van Deventer

Applicant

Lee van Deventer

Respondent

Annette Tetkje Stevens

Respondent

Magistrate RC Venter

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Reconsideration and Setting Aside of Ex Parte Order.

Legal Issues

  1. 1 Whether the court erred in hearing the reconsideration application as an urgent application.
  2. 2 Whether the court erred in setting aside the ex parte order granted on 16 May 2023.
  3. 3 Whether the requirements of Rule 57(3)(b) were complied with in the original ex parte application.

Ratio Decidendi

The application for leave to appeal is dismissed because the grounds advanced are without merit. The right to anticipate the ex parte order on an urgent basis was explicitly provided for in the original order, and the court's discretion to hear the matter urgently was properly exercised. The applicants conceded that Rule 57(3)(b) was not complied with, as there were no affidavits from two medical practitioners who had recently examined the patient. This omission was fatal to the justification and continued existence of the ex parte order. There are no reasonable prospects of success or compelling reasons for the appeal to be heard.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of the application for leave to appeal.