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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Appeal Case Number: A81/2024
Case no: 65703/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: YES
DATE: 5 March 2026
SIGNATURE OF JUDGE:
In the matter between:
STANDARD BANK OF SOUTH AFRICA APPLICANT
(Reg no: 1962/000738/06)
and
ANDREW DAVID BARCLAY FIRST RESPONDENT
(Identity Number: 6[...])
BEVERLEY JANE BARCLAY SECOND RESPONDENT
(Identity Number: 6[...])
In re:
The appeal of:
ANDREW DAVID BARCLAY FIRST APPELLANT
(Identity Number: 6[...])
BEVERLEY JANE BARCLAY SECOND APPELLANT
(Identity Number: 6[...])
And
STANDARD BANK OF SOUTH AFRICA RESPONDENT
(Reg no: 1962/000738/06)
In re:
STANDARD BANK OF SOUTH AFRICA PLAINTIFF
(Reg no: 1962/000738/06)
and
ANDREW DAVID BARCLAY FIRST DEFENDANT
(Identity Number: 6[...])
BEVERLEY JANE BARCLAY SECOND DEFENDANT
(Identity Number: 6[...])
JUDGMENT
Klopper, AJ
INTRODUCTION:
[1] This is an application in terms of which the Applicant seeks the following relie f:
“1 That it be declared that the Respondents’ (Andrew David Barclay and
Beverley Jane Barclay) appeal, to the full court of this Honourable Court, has
lapsed in terms of rule 49(6)(a) of the Uniform Rules of this Honourable Court;
2 That the Respondents be ordered to pay the Applicant’s wasted costs
of the appeal, in terms of rule 49(6)(a) of the Uniform Rules of Court;
3 That the Respondents be ordered to pay the Applicant’s cost of this
application;
4 Further and/or alternative relief.”
LITIGATION HISTORY:
[2] The Applicant was the plaintiff in the court a quo and issued summons against
the Respondents based on the enforcement of a home loan agreement on the basis
that the Respondents have breached the terms of the loan agreement.
[3] The Respondents were the two defendants in the court a quo.
[4] Following a plea filed by the Respondents, the Applicant applied for summary
judgment during July 2021.
[5] On 6 September 2021, summary judgment was granted against the
Respondents in favour of the Applicant.
[6] On 26 October 2021, the Respondents filed an application for leave to appeal
together with an application for condonation for the late filing of the application for
leave to appeal.
[7] On 13 November 2023, Justice Bam J, granted the Respondents leave to
appeal to the full court of this division.
[8] On 5 December 2023, the Respondents, as Appellants, filed their notice of
appeal.
[9] On 4 April 2024, the Registrar issued a notice to the parties, giving notice of
the allocation of a date for the hearin g of the appeal to be 8 October 2025. However,
on 5 April 2024, the Registrar appears to have issued a further notice, which reads
as follows:
“Kindly note that the APPEAL DATE OF 08 OCTOBER 2025 IS NO LONGER
AVAILABLE AND THE APPEAL IS REMOVED FROM THE ROLL.
No Proper Heads of Argument
No Proper Practice Note
No Application for an Appeal Date
No Records
No Security for cost in terms of Rule 49(13)
All this above is also not uploaded onto CaseLines therefore the appeal date
does not exist for the 08 October 2025….”
APPLICANT’S CASE:
[10] The Applicant contends that the Respondents have failed to advance or
prosecute the appeal after they filed their notice of appeal in terms of Rule 49(2).
[11] In addition, the Applicant co ntends that the Respondents also failed to seek
condonation for the non-compliance with the rules of court in this regard.
[12] In accordance with Rule 49(6)(a) of the Uniform Rules of Court, in the
absence of any application for an appeal date, the appeal shall be deemed to have
lapsed.
[13] In the premises the Applicant is entitled to an order declaring that the appeal
have lapsed and, in addition, in terms of Rule 49(6)(a), for an order for the
Applicant’s wasted cost.
THE RESPONDENTS’ CASE:
[14] The Fi rst and Second Respondents contend that after leave to appeal was
granted, their former attorneys applied for a hearing date within the 60 days
stipulated in the Rules.
[15] The Respondents stated that “a date was allocated, but apparently the appeal
date was withdrawn”.
[16] With regards to their failure to advance the appeal, the Respondents
contended that:
16.1. Their current attorney of record attended to court on 21 October 2024
to enquire as to the state of affairs but was informed by the Registrar that the
appeal file was empty and that the date allocated for the hearing was,
unbeknownst to them, withdrawn during the month of April 2024;
16.2. Upon receipt of the initial notice, they were under the impression that
the appeal would progress in the n ormal course and as such their failure to
pursue the appeal was not wilful;
16.3. They have instructed their attorneys of record to re -apply for a hearing
date and to the extent necessary an application for condonation due to the
late filing thereof.
[17] Accordingly, the application should be dismissed with cost and condonation
be granted for the late application for a hearing date of the appeal.
APPLICABLE LEGAL PRINCIPLES:
[18] Uniform Rule 49(6)(a) and (b) reads as follows:
“(6)(a) Within 60 days afte r delivery of a notice of appeal, an appellant shall
make written application to the registrar of the division where the appeal is to
be heard for a date for the hearing of such appeal and shall at the same time
furnish him with his full residential addres s and the name and address of
every other party to the appeal and if the appellant fails to do so as a
respondent may within 10 days after the expiry of the said period of 60 days,
as in the case of the appellant, apply for the set down of the appeal or cr oss-
appeal which he may have noted. If no application is made by either party the
appeal and cross -appeal shall be deemed to have lapsed: Provided that a
respondent shall have the right to apply for an order for his wasted costs.
(b) The court to which t he appeal is made may, on application of the
appellant or cross -appellant, and upon good cause shown, reinstate an
appeal or cross-appeal which has lapsed.”
[19] This rule underscores the importance of timely prosecution of appeals. Non -
compliance means th at the appeal automatically lapses, and such a lapse does not
require judicial intervention.
[20] The court, to which the appeal is made, may reinstate an appeal which has
lapsed. This is at the discretion of the appeal court, which exercises its discretio n
judicially upon due consideration of the relevant facts.
ANALYSIS:
[21] The Respondents claim to have instructed their attorneys of record to “ re-
apply for a hearing date and to the extent necessary an application for condonation
due to the late filing thereof .” However, the Respondents provided no documentary
evidence in support of this notion.
[22] The Respondents also failed to provide any documentary evidence in support
of the notion that they in itially applied for a hearing date within the sixty days
stipulated in Rule 49(6)(a).
[23] In accordance with Rule 49(6)(a) i t is clear that in the absence of an
application for a date for the hearing of the appeal and/or cross -appeal, the appeal
shall be deemed to have lapsed ex lege.
[24] Where an application for a hearing date is not made within sixty days, the
appeal lapses automatically by operation of the Rule and any application for
reinstatement must be brought before the Court to which the appeal is made in
accordance with the provisions of Rule 49(6)(b). This is at the discretion of the
Appeal Court, which exercises its discretion judicially upon consideration of the facts.
[25] It is evident from the notice issued by the court dated 5 April 2024, 1 that the
Respondents failed to comply with the provisions of Rule 49(6)(a) of the Rules of
Court. The Respondents failed to provide any evidence to the contrary. On the basis
of the above, I am satisfied that a proper case is made for the relief sought.
ORDER:
[26] Accordingly, I make the following order:
26.1. That the First and Second Respondents’ appeal, to the Full Cour t, has
become lapsed ex lege in terms of Uniform Rule 49(6)(a);
26.2. That the First and Second Respondents are ordered to pay the
Applicant’s wasted costs of the appeal, in terms of rule 49(6)(a) of the Uniform
Rules of Court, to be taxed on scale B;
26.3. That the First and Second Respondents be ordered to pay the
Applicant’s cost of this application, to be taxed on scale B.
JA KLOPPER
ACTING JUDGE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronically by circulation to the Plaintiff’s legal
representatives and the Defendants by email and by being uploaded to CaseLines.
The date and time for the hand down is deemed to be on 5 March 2026.
Appearances
1 See annexure “RA1” to Applicant’s replying affidavit: CaseLines: H77
Counsel for the Applicant: Adv R Raubenheimer
Instructed by: Vezi De Beer Inc
Appearance for Respondents: Adv I Kruger
Instructed by: Madelein Kruger Attorneys
Date of Hearing: 5 November 2025
Date of Judgment: 5 March 2026