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[2023] ZAGPJHC 1129
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Vuselela Security SPV (RF) v Lizoxola Properties (069952/2023) [2023] ZAGPJHC 1129 (6 October 2023)
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 25
th
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