Polokwane 28 Joint Venture and Others v Development Bank of Southern Africa (A369/19; A372/19) [2021] ZAGPPHC 326 (31 May 2021)

Polokwane 28 Joint Venture and Others v Development Bank of Southern Africa (A369/19; A372/19) [2021] ZAGPPHC 326 (31 May 2021)

The appeal was upheld because the court a quo failed to follow proper procedure by dismissing the applications for postponement and condonation without hearing argument from the appellants. The court a quo was functus officio after pronouncing its order and did not recall or reconsider the order. The appellate court found that the only appropriate relief was to set aside the orders of the court a quo and remit the matter to a differently constituted court for hearing de novo. Costs were awarded to the appellants as no cogent reasons were advanced to depart from the general rule that costs follow the event.

Citation
[2021] ZAGPPHC 326
Parties
Appellant: Polokwane 28 Joint Venture; Appellant: Matome Maponya Investments; Appellant: The Trustees for the Time Being of the Rasadri Beleggingstrust; Respondent: Development Bank of Southern Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 May 2021
Case Number
A369/19; A372/19
Procedural Posture
Civil Appeal / Appeal From Opposed Application; Full Court
Outcome
Appeal upheld; orders of the court a quo set aside; matter remitted for hearing de novo; costs awarded to appellants.
Judges
van der Westhuizen, Hughes, Manamela
Legal Topics
Functus Officio, Rule 6 5 D Iii, Postponement Application, Condonation of Late Filing
Civil Procedure Functus Officio Rule 6 5 D Iii Postponement Application Condonation of Late Filing

Case Brief

Summary, issues, holding and outcome

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Parties

Polokwane 28 Joint Venture

Appellant

Matome Maponya Investments

Appellant

The Trustees for the Time Being of the Rasadri Beleggingstrust

Appellant

Development Bank of Southern Africa Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Opposed Application; Full Court

Legal Issues

  1. 1 Whether the court a quo erred in dismissing the applications for postponement and condonation without hearing argument from the appellants.
  2. 2 Whether the court a quo was functus officio after pronouncing its order on postponement.
  3. 3 Whether the procedure followed by the court a quo was irregular and resulted in a miscarriage of justice.

Ratio Decidendi

The appeal was upheld because the court a quo failed to follow proper procedure by dismissing the applications for postponement and condonation without hearing argument from the appellants. The court a quo was functus officio after pronouncing its order and did not recall or reconsider the order. The appellate court found that the only appropriate relief was to set aside the orders of the court a quo and remit the matter to a differently constituted court for hearing de novo. Costs were awarded to the appellants as no cogent reasons were advanced to depart from the general rule that costs follow the event.

Court Disposition

Appeal upheld; orders of the court a quo set aside; matter remitted for hearing de novo; costs awarded to appellants.

Orders

  • The appeal is upheld.
  • The orders of the court a quo are set aside.