Saders Attorneys v Moolman and Another In re: Sellar v Moolman and Another (01/25930) [2009] ZAGPJHC 31; [2009] 4 All SA 444 (GSJ) (31 July 2009)

Saders Attorneys v Moolman and Another In re: Sellar v Moolman and Another (01/25930) [2009] ZAGPJHC 31; [2009] 4 All SA 444 (GSJ) (31 July 2009)

The court found that the applicant failed to establish that condonation for the late filing of the notice of application for leave to appeal was granted by the respondents, either expressly or tacitly. The correspondence and conduct of the parties did not amount to condonation, and the applicant was expressly warned that the lateness would be raised at the hearing. The order dismissing the application for leave to appeal was not the result of a mistake common to the parties. The application for variation of the order accordingly failed. The remainder of the relief sought was misconceived, as the court was not sitting as a court of appeal and the applicant had not applied for leave to...

Citation
[2009] ZAGPJHC 31
Parties
Applicant: Saders Attorneys; Respondent: Dorothea Johanna Susanna Moolman; Respondent: Helena Catharina Moolman; Applicant: Michael Henry Sellar
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 July 2009
Case Number
01/25930
Procedural Posture
Variation Application / Application for Variation of a Previous Costs Order
Outcome
Application dismissed with costs.
Judges
FHD Van Oosten
Legal Topics
Variation of Court Order, Condonation, Leave to Appeal, Costs De Bonis Propriis
Civil Procedure Variation of Court Order Condonation Leave to Appeal Costs De Bonis Propriis

Case Brief

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Parties

Saders Attorneys

Applicant

Dorothea Johanna Susanna Moolman

Respondent

Helena Catharina Moolman

Respondent

Michael Henry Sellar

Applicant

Procedural Posture

Variation Application / Application for Variation of a Previous Costs Order

Legal Issues

  1. 1 Whether condonation for the late filing of the notice of application for leave to appeal was granted by the respondents.
  2. 2 Whether the order dismissing the application for leave to appeal resulted from a mistake common to the parties.
  3. 3 Whether the applicant is entitled to a variation of the costs order.

Ratio Decidendi

The court found that the applicant failed to establish that condonation for the late filing of the notice of application for leave to appeal was granted by the respondents, either expressly or tacitly. The correspondence and conduct of the parties did not amount to condonation, and the applicant was expressly warned that the lateness would be raised at the hearing. The order dismissing the application for leave to appeal was not the result of a mistake common to the parties. The application for variation of the order accordingly failed. The remainder of the relief sought was misconceived, as the court was not sitting as a court of appeal and the applicant had not applied for leave to...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.