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2024
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[2024] ZAFSHC 304
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Mathibeli v Dippenaar & Crous Attorneys (A179/2023) [2024] ZAFSHC 304 (19 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A179/2023
In
the matter between:
TSIU
ADAM MATHIBELI
Appellant
and
DIPPENAAR
& CROUS ATTORNEYS
Respondent
BEFORE:
CHESIWE, J
et
MANYE, AJ
HEARD
ON:
15 APRIL
2024
DELIVERED
ON:
19 SEPTEMBER 2024
[1]
The appellant brought an application for
leave to appeal the whole judgment and order granted in the
Magistrate Court, Bloemfontein
on 2 August 2003, wherein the
appellant was the defendant and the respondent was the plaintiff.
[2]
The appeal was placed on the roll for 15
April 2024 in order to ventilate the grounds for appeal. The
appellant was in person and
there was no appearance on behalf of the
respondent.
[3]
The
respondent had at the Magistrate Court, filed a Rule 27(2) in which
the action was withdrawn against the appellant dated 13
September
2023.
[1]
[4]
The appellant served the appeal application
and the notice simultaneously on the respondent on 9 February 2024.
[5]
I need to pause to mention that the
appellant appeared in person; his papers are intricate and leaving
this Court in a conundrum.
The written heads of argument were filed
and the appellant presented his case on these written heads. The
Court also had difficulty
to discern what is relevant or irrelevant
in the heads of arguments presented before it.
[6]
The appellant’s main grounds of
appeal are that, the respondent withheld documents that were relevant
to the case in the Court
a quo
and that the Court misdirected itself in finding that the appellant
failed to prove the alleged allegations.
Background
[7]
The respondent had acted as a legal
representative for the appellant in a matter against BMW Financial
Services, under case number:
6178/2017, at the Bloemfontein
Magistrate Court. The respondent withdrew as attorneys of record and
instructed Kruger Venter to
institute action against the appellant
for their legal fees. Summons were served on the appellant on 25
October 2021. The appellant
defended the matter in person and served
a notice of bar on 6 December 2021, and on 22 April 2022, served the
Respondent’s
attorneys with a notice of intention to apply for
a dismissal of the case.
[8]
On
12 May 2022, the Court
a
quo
granted the following order:
[2]
‘
1.
The Plaintiff’s claim is dismissed with costs.
2. Absolution from the
instance is granted.’
[9]
The
respondent approached the Magistrate Court with an application for
rescission of judgment. The Court
a
quo
granted a rescission on 2 August 2023.
[3]
The appellant, aggrieved by the order, noted an appeal at the
Magistrate Court that the application for rescission be dismissed
with costs.
[4]
Notice
of appeal
[10]
The submissions as contained in the notice
of appeal are not set out succinctly and were therefore challenging
to follow.
[11]
The
appellant states that in the answering affidavit which forms part of
the record pertaining to the rescission application granted,
a
document was withheld from the Court
a
quo
by the respondent which bore ‘unsolicited advice’ for
another application. Further that it is noted as part of the
filed
record, the Respondent’s Affidavit in support of the rescission
application it never received a notice of set down
from the
appellant’s attorneys.
[5]
[12]
However,
the record shows that on 5 May 2022, the matter in which an order was
granted in favor of the appellant, was postponed
with the respondent
represented,
[6]
which is a
total contrast to the affidavit as noted above.
[13]
However, the appellant during appeal
proceedings before this Court, was made aware of the Rule 27(2)
notice though insisted that
he wants to proceed with the appeal
application for the rescission judgment that set aside the decision
of 12 May 2022 as noted
above. Further, the appellant affirmed that
he stands by the written heads of argument.
[14]
In having sought and received clarity from
the appellant as indicated above, an appeal against an order of the
magistrate in a civil
matter granting an application for rescission
of judgment granted in favor of the respondent on 2 August 2023,
commenced.
Grounds
of appeal
[15]
The
grounds of appeal as contained in the notice of appeal states the
Court
a
quo
’s
misinterpretation of the law. Moreover, in having considered the
rescission application, the Court
a
quo
misdirected itself in its reply to the reasons for the granting of
the rescission application about the facts found to be proven.
[7]
[16]
Further
that, the heads of argument presented by the appellant in the appeal
state that there are reasonable prospects of success
and that another
Court would come to a different conclusion. Again, this poses a
conundrum based on fact that, the test of reasonable
prospects of
success which postulated a dispassionate decision based on the
facts and the law that a Court of appeal could
come to a reasonable
conclusion different to that of the trial court, is applicable in a
leave to appeal application and not an
appeal.
[8]
[17]
This is a civil appeal from the magistrate
court in terms of Rule 50. Although the noting of an appeal lays the
foundation of the
proceedings in the High Court, it is an act done in
the Magistrate’s Court. The prosecution of an appeal under this
rule
is a proceeding in the High Court.
[18]
In
Tavakoli
and Another v Bantry Hills (Pty) Ltd
[9]
,
the Supreme Court of Appeal said the following:
‘
An
appeal lies against the order, not the reasons, of a court.’
[10]
[19]
The issue, is whether should the Court
a
quo
in the exercise of its discretion,
have refrained from setting aside the order of 12 May 2022 granted in
favor of the Appellant.
[20]
The appellant has to, however, pass the
hurdle of the notice of withdrawal of the action against him. The
respondent was
dominus litis
in the rescission application and the granting thereof. The action
has been withdrawn against the appellant with no tender for
defendant’s costs made.
[21]
The respondent, in a letter dated 18
September 2023, noted the following:
‘
We
enclose herewith a copy of the judgment in the rescission
application, which application was granted (sic) with costs in favor
of the applicant.
We wish to confirm that
we no longer wish to pursue the matter. It is simply not worth the
time and effort involved.
Consequently, we are
filing a Notice in terms of Rule 27(2).
You will notice that no
costs are tendered as it is clear that Plaintiff’s costs in the
rescission application will far exceed
your client’s costs in
the action.’
[22]
It is therefore with consideration of the
above, that the appellant’s appeal is rendered moot in that the
action against the
appellant has been withdrawn and that the
appellant was informed of the withdrawal of action in September 2023.
Therefore, appellant
ought not to have proceeded with the appeal.
[23]
Further that, most of the issues raised in
the notice to appeal, as well as the in heads of argument, are
irrelevant pursuant to
the matter that is before this Court.
[24]
In my view, the appeal application ought to
be dismissed as the respondent being
dominus
litis
, has withdrawn the action.
[25]
I accordingly order as follows:
1.
The Appeal is dismissed.
2.
No order as to costs.
CHESIWE,
J
I
concur.
MANYE,
AJ
On
behalf of the Appellant: In Person
On
behalf of the Respondent: No appearance
[1]
Annexure
‘D’ Notice of Withdrawal of Action in terms of Rule
27(2), page 76 of the Index - Appellant’s Bundle
of Documents.
[2]
Draft
Order, page 24 of the Index – Appellant’s Bundle of
Documents.
[3]
Court
Order, page 41 of the Index – Appellant’s Bundle of
Documents.
[4]
Erasmus
Superior Court Practice/Volume 2: Uniform Rules and Appendices/Part
D Rules/D1 Uniform Rules of Court/Rules regulating
the conduct of
the proceedings of
the
several provincial and local divisions — GN R48 of 1965/RULES
OF COURT/50 Civil appeals from magistrates’ courts.
[5]
Affidavit
in support of the rescission application, page 86, paragraph 7.1 of
the Index – Appellant’s Bundle of Documents.
[6]
Transcribed
record, page 19 of the Index – Appellant’s Bundle of
Documents.
[7]
Rule
51(1): Presiding Officer’s Reply, page 49 of the Index –
Appellant’s Bundle of Documents.
[8]
Smith
v S
[2011]
ZASCA 15
;
2012 (1) SACR 567
(SCA) 570 para 7.
[9]
Tavakoli
and Another v Bantry Hills (Pty) Ltd
[2018] ZASCA 159; 2019 (3) SA 163 (SCA).
[10]
Ibid para 3.