Taute v Borman (CIV APP MG 13/2023) [2024] ZANWHC 66 (7 March 2024)

Taute v Borman (CIV APP MG 13/2023) [2024] ZANWHC 66 (7 March 2024)

The appellant failed to prosecute the appeal within the prescribed timeframes set out in Uniform Rule 50, having noted the appeal out of time and only applied for a hearing date after the expiry of both the 40-day and 60-day periods. No substantive application for condonation was brought. The court held that a deeming provision, such as that in Rule 50(1), requires the court to make a pronouncement on whether the appeal has in fact lapsed. In the absence of a formal application for condonation or re-instatement, and given the procedural non-compliance, the appeal stands to be removed from the roll. Costs follow the result and are awarded to the respondent on a party-and-party basis, to be...

Citation
[2024] ZANWHC 66
Parties
Appellant: Arnesta Taute; Respondent: Hendrik Pieter Borman
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
7 March 2024
Case Number
CIV APP MG 13/2023
Procedural Posture
Civil Appeal / Appeal Against Order of Children's Court; Point in Limine Raised Regarding Lapsing of Appeal
Outcome
Appeal removed from the roll; costs awarded against the appellant.
Judges
Hendricks, Petersen
Legal Topics
Appeal Lapsing, Uniform Rule 50, Condonation, Children's Court Orders
Civil Procedure Family and Children Appeal Lapsing Uniform Rule 50 Condonation Children's Court Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Arnesta Taute

Appellant

Hendrik Pieter Borman

Respondent

Procedural Posture

Civil Appeal / Appeal Against Order of Children's Court; Point in Limine Raised Regarding Lapsing of Appeal

Legal Issues

  1. 1 Whether the appeal against the Children's Court order had lapsed due to non-compliance with Uniform Rule 50.
  2. 2 Whether a substantive application for condonation was required and made.
  3. 3 Whether the court must make a pronouncement that an appeal deemed to have lapsed has in fact lapsed.

Ratio Decidendi

The appellant failed to prosecute the appeal within the prescribed timeframes set out in Uniform Rule 50, having noted the appeal out of time and only applied for a hearing date after the expiry of both the 40-day and 60-day periods. No substantive application for condonation was brought. The court held that a deeming provision, such as that in Rule 50(1), requires the court to make a pronouncement on whether the appeal has in fact lapsed. In the absence of a formal application for condonation or re-instatement, and given the procedural non-compliance, the appeal stands to be removed from the roll. Costs follow the result and are awarded to the respondent on a party-and-party basis, to be...

Court Disposition

Appeal removed from the roll; costs awarded against the appellant.

Orders

  • The appeal is removed from the roll.
  • The appellant is ordered to pay the wasted costs on a party-and-party basis, to be taxed.