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South Africa Judgment

South Gauteng High Court, Johannesburg

Vuselela Security SPV (RF) v Lizoxola Properties (069952/2023) [2023] ZAGPJHC 1129 (6 October 2023)

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Source document

01

Holding and result

The application for leave to appeal was dismissed because the underlying order was granted by consent, and it is well-established that appeals do not lie against consent orders. The only non-consensual aspect was the costs order, which was made in accordance with a contractual provision for attorney-and-client costs. No facts were presented to justify a departure from the contractual costs scale, and the applicant failed to advance any grounds attacking the costs order. Therefore, there was no prospect of success on appeal, and the application was dismissed with costs on the attorney-and-client scale.

Court disposition

Application for leave to appeal dismissed with costs on the attorney-and-client scale.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant for leave to appeal is to pay the costs of the application on the scale as between attorney and client.

02

Material facts

Parties

Vuselela Security SPV (RF)

Applicant

Lizoxola Properties

Respondent

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Urgent Court Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant did not appear in court or submit any substantive grounds challenging the costs order or the consent nature of the original order. No specific grounds were advanced attacking the costs order.
Respondent
The respondent argued that the order was granted by consent, except for the costs order, and that an appeal does not lie against a consent order. The respondent relied on the agreement providing for attorney-and-client costs and asserted that no facts justified departure from the contractual costs scale.

05

Court’s reasoning

  1. 01

    Common law; Rule 42 of the Uniform Rules of Court

    An appeal does not lie against an order taken by consent; such orders may only be challenged by rescission under Rule 42 or the common law.

  2. 02

    Relevant case law and contractual principles

    Where costs on the attorney-and-client scale are contractually agreed, courts may depart from such undertakings only if justified by facts under oath.

06

Ratio, limits and disposition

Ratio decidendi

The application for leave to appeal was dismissed because the underlying order was granted by consent, and it is well-established that appeals do not lie against consent orders. The only non-consensual aspect was the costs order, which was made in accordance with a contractual provision for attorney-and-client costs. No facts were presented to justify a departure from the contractual costs scale, and the applicant failed to advance any grounds attacking the costs order. Therefore, there was no prospect of success on appeal, and the application was dismissed with costs on the attorney-and-client scale.

Obiter and limits

  • The applicant's absence from court and failure to argue the application did not affect the consideration of the merits, as full argument was presented by the respondent.
  • Courts are not absolutely bound by contractual undertakings regarding costs, but a departure must be justified by facts under oath.

Court disposition

Application for leave to appeal dismissed with costs on the attorney-and-client scale.

  • The application for leave to appeal is dismissed.
  • The applicant for leave to appeal is to pay the costs of the application on the scale as between attorney and client.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2023] ZAGPJHC 1129

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION,

JOHANNESBURG

CASE NO: 069952/2023

DATE: 06-10-2023

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

06/10/23

In the matter between

VUSELELA SECURITY SPV (RF) Plaintiff and

LIZOXOLA

PROPERTIES Defendant

J U D G M E N T

LEAVE TO APPEAL

WILSON, J:This is an application for leave to appeal against an order I granted in Urgent Court on the 25th of July 2023.

It is not necessary for me to traverse the merits of the application because as Mr Cooke pointed out and as I recorded in my judgment, the order now sought to be appealed against was granted by consent, save in one respect to which I will presently turn.

It is well-established that an appeal does not lie against an order that has been taken by consent. Any such challenge to an order taken by consent may, in certain circumstances, be the subject of a rescission application, whether under Rule 42 or the common law, but there is no basis on which it would be appropriate to grant leave to appeal against a consent order. It follows that, save in one respect, the application must be dismissed on that ground alone.

The only aspect of my order that was not granted by consent was a direction that the applicant for leave to appeal pay the costs of the application on the attorney-and-client scale.

The reasons I gave for that order were that, first of all, costs on the attorney-client scale were provided for in the agreement upon which the respondent in the application for leave to appeal sued in the court a quo. Second, there were no facts under oath before me that would have justified a departure from that contractual undertaking, even though I accepted it in my judgment that such a departure is possible and the courts are not bound by contractual undertakings to pay costs on a particular scale.

Since the applicant for leave to appeal has not turned up to argue otherwise, I have no basis on which I could find that I was wrong to come to that conclusion. I might as well record, in addition, that in the application for leave to appeal no specific grounds are set out that so much as attack the costs order, let alone lead me to conclude, that I could have been wrong to grant costs on the attorney-and-client scale.

No case has been made out that there is any prospect of setting aside the costs order on appeal. It follows from all of this that the application for leave to appeal must be dismissed.

The application must be dismissed with costs on the attorney-and-client scale,because that is the costs order I gave in the court a quo and there is no reason to depart from it in the application for leave to appeal.

I am setting all of this out to record that Mr Cooke has presented full argument on the application and that I have considered the application on its merits. notwithstanding the fact that the applicant has chosen not to come to court and argue it before me.

For all those reasons, I make the following order:

(1) The application for leave to appeal is dismissed.

(2) The applicant for leave to appeal is to pay the costs of the application on the scale as between attorney and client.

WILSON, J

JUDGE OF THE HIGH COURT

DATE: 6 October 2023

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rule 42 of the Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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