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[2022] ZAGPPHC 144
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Cliffendale Villas Body Corporate v Mbowane (28013/19) [2022] ZAGPPHC 144 (8 March 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
8 March 2022
CASE NO: 28013/19
In
the matter between:
CLIFFENDALE VILLAS
BODY CORPORATE
APPLICANT / APPELLANT
and
ALFRED THEODORE
MBOWANE
RESPONDENT
JUDGMENT
Van der Schyff J
[1]
The applicant filed a notice of motion seeking an
order that an adjudication award dated 9 March 2019 be stayed pending
the finalisation
of the applicantâs appeal in terms of s 57(3) of
the Community Schemes Ombud Service Act, 9 of 2011 (CSOS).
[2]
The applicantâs replying affidavit was filed on
14 June 2019 and on 24 October 2019 the judgment of the Full Bench of
this court
pertaining to how appeals against adjudication orders are
to be dealt with, was handed down. On 2 June 2021 the applicantâs
heads
of argument and practice note in this application were filed.
The respondent served a notice of an interlocutory application to
file
an additional affidavit on 18 August 2021. Although a notice to
oppose the interlocutory application was filed, counsel for the
applicant
indicated from the bar that the applicant will abide in the
courtâs decision relating to the filing of the additional
affidavit.
The leave sought by the respondent is granted due to the
fact that the supplementary affidavit succinctly sets out the
chronology
of events and sheds light on the prejudice suffered by the
respondent.
[3]
It is common cause that the appeal has lapsed
because the applicant failed to prosecute the appeal. Although the
applicant has not
as yet, filed an application for condonation and
the reinstatement of the appeal, counsel indicated that the applicant
is set on
reinstating the appeal. It is trite that an applicant may
seek condonation for not-prosecuting an appeal.
[4]
It would not be fair to the respondent to allow
the applicant to reinstate the appeal at its leisure. However, the
court cannot merely
disregard the applicantâs expressed intention
to reinstate the appeal. The application to stay the execution of the
award pending
the appeal can, however, not be decided before a court
has decided whether to grant condonation and reinstate the appeal.
[5]
The applicantâs lackadaisical approach will be
met with an appropriate costs order.
ORDER
In the result,
the following order is granted:
1.
This application is stayed, pending:
1.1.
The applicant launching an application for
condonation for not prosecuting the appeal against the CSOS-award and
the reinstatement
of the appeal within 15 days of the date of this
order, failing which the respondent is given leave to re-enrol this
application
for hearing;
1.2.
In the event of the applicant having complied
with paragraph 1.1 above, the court having heard the condonation
application, granting
the relief sought;
2.
The parties may enrol this application to be
heard simultaneously with the condonation application and the
application for the reinstatement
of the appeal; or upon finalisation
of the application for condonation and the reinstatement of the
appeal, either party may enrol
this application for hearing, on the
same papers, duly amplified where necessary;
3.
The applicant is to pay the costs of this
application thus far incurred.
E van der Schyff
Judge of the High
Court
Delivered: This judgement
is handed down electronically by uploading it to the electronic file
of this matter on CaseLines.
As a courtesy gesture, it will be sent
to the parties/their legal representatives by email. The date for
hand-down is deemed to be
8 March 2022.
Counsel for the
applicant:
Adv. T A L L Potgieter SC
Instructed by:
Loock Du
Pisanie Inc.
For the
respondent:
Adv. R Raubenheimer
Instructed
by:
Mbowane
Inc.
Date of the
hearing:
3 March 2022
Date of
judgment:
7
March 2022