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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
CASE NO: A2025-146025
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
DATE 12/05/2026
SIGNATURE
In the matter between:
JUAN-PIERRE DIQUE FIRST APPELLANT
JOHANNA MARIA DIQUE SECOND APPELLANT
And
GEORGE DE JAGER FIRST RESPONDENT
KAREN DE JAGER SECOND RESPONDENT
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email. The date of hand -down is
deemed to be on 12 May 2026
JUDGMENT
Phahlamohlaka J et Mphahlele JP
Phahlamohlaka J
Introduction
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[1] This is an appeal against the judgment and order of Magistrate H P
Mkhabela of the Magistrates ’ Court for the District of Nkangala, Middelburg
(“the court a quo”), dismissing the appellants’ application with costs.
[2] The appellants are the owners of a property at 1[...] D[...] P[...] Street,
Dennesig, Middelburg. The respondents are the appellants’ neighbours. The
appellants filed an interdictory application in the court a quo against the
respondents, alleging that the respondents’ dogs caused a noise nuisance
by barking constantly, day and night, infringing on their peaceful enjoyment
of their property. The appellants alleged that the respondents’ dogs barked
incessantly, causing a noise nuisance that deprived them of sleep, affected
their work, and disrupted their peaceful enjoyment of their property.
[3] The respondents opposed the application, arguing that the appellants
failed to prove the requirements for an interdict, including the absence of
alternative remedies. They contended that the appellants could have
approached the SPCA or other authorities to address the issue. The
respondents also disputed the sufficiency of the evidence provided by the
appellants, including the affidavits and CCTV footage. The respondents
denied the allegations, claiming that the dogs were not constantly barking
and argued t hat the appellants had not exhausted other remedies before
approaching the court.
Point in limine
[4] The respondent s raised a point in limine , that the appeal has lapsed
because the appellant s failed to apply to the Registrar for the date of
hearing of the appeal within 40 days in terms of Rule 50(4) (a) of the Uniform
Rules of Court.
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[5] The parties are ad idem that the appellants had applied to the
Registrar on day 47 , but the appellant s submitted that the appeal had not
lapsed because it was prosecuted within 60 days in terms of Rule 50(1).
[6] Rule 50(1) of the Uniform Rules of Court provides as follows:
“An appeal to the court against the decision of a magistrate in a civil matter shall
be prosecuted within 60 days after noting such appeal, and unless so prosecuted it
shall be deemed to have lapsed."
[7] Rule 50(4)(a) provides that within 40 days of noting the appeal, the
applicant shall apply to the Registrar in writing and with notice to all other
parties for the assignment of a date for the hearing of the appeal. ( my
emphasis)
[8] It is common cause between the parties that the application for the
assignment of a date was made after the 40 days prescribed by the Rules.
The court is therefore basically called upon to determine if the 40-day period
prescribed in Rule 50 (1)(a) is of any consequence. In other words, the
question is whether the 40 -day period within which an appellant must apply
to the Registrar can be cured by Rule 50(1) which provides that the appeal
shall be prosecuted within 60 days and unless so prosecuted it shall lapse.
[9] Counsel for the Respondents referred us to two judgments which dealt
with a similar issue, and in both cases the court s found that the appeal ha d
lapsed.
[10] In Pilato v Fakude1, a judgment of this Division, the court noted as follows:
“(47) ….Clearly, there is no indication in the index and paginated bundles that the
appellant had applied for assignment of a date for the hearing of the appeal within
the period provided for in the Uniform Rules of Court 50(4) or at all.” The court in
Pilato also found that because the appellant ha d failed to comply with the
1 Pilato v Fakude 2021 JDR 3042 (MN)
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Rules and did not apply for condonation the point in limine must succeed.
The facts in Plato resonate with the facts in casu. However, in Pilato the court
proceeded to deal with the merits of the appeal. The basis thereof is not
clear.
[11] I therefore agree with the conclusion that if a litigant has not complied
with the Rules the remedy available to cure the noncompliance is to apply
for condonation. In this case the appellant s have not applied for
condonation for the late application of a date to the Registrar.
[13] Similarly in Taute v Borman 2 the appellant had not prosecuted the
appeal within the prescribed 40 -day period in terms of Rule 50(4)(a) and
there was no substantive application for condonation. However, Hendricks JP
found that the appeal had not lapsed but he removed the appeal from the
roll with a question to be determined later whether the appeal that is
deemed to have lapsed has indeed lapsed. I must hasten to say this
judgment is of no assistance to this court.
[14] Counsel for the appellant referred us to another Northwest judgment of
Spamer v Olivier3 to advance their submission that the appeal has not
lapsed. In Spamer4 the court found that the deeming provision in Rule 50(1)
was not triggered as the period of 60 days had not lapsed when the
appellant prosecuted the appeal and therefore the appeal had not lapsed.
However, the appellant’s application for condonation was dismissed. The
court on Spamer has not dealt with the interpretation of Rule 50(4)(a) in the
circumstances where an appellant failed to apply for an assignment of a
date within 40 days.
2 Taute v Borman 2024 JDR 1021 (NWM)
3 (CIV APP MAG 34/2023) [2024] ZANWHC 236 (11 September 2024)
4 Spamer v Olivier supra Para 32
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[15] Rule 50 is peremptory. Subrule 1 provides that the appeal shall be
prosecuted within 60 days, and unless so prosecuted it shall be deemed to
have lapsed . Subrule 4(a) provides that “The appellant or such appellant’s
legal representatives shall, within 40 days of noting the appeal, apply to the
Registrar in writing for the assignment of a date for the hearing of the appeal.
The two subsections are peremptory, and they give the appellant no choice.
[16] However, the appellant who fails to comply with Rule 50 or any other
Rule is not remediless. A condonation application procedure is available to a
party who has not complied with the Rules.
[17] In Coetzee NO and another v Saldanha Bay Municipality 5 the Western
Cape High Court held that the appeal has lapsed for want of prosecution
within the time periods prescribed by Rule 50 and no application for
reinstatement has been brought.
[18] In my view, this appeal has lapsed because the appellant failed to apply
for a date of hearing in writing to the Registrar within the time periods
prescribed by Rule 50(4)(a). However, the appeal can be brought back to
life through a proper and comprehensive application for condonation. The
appellant chose not to file such an application for condonation and
therefore this court is not competent to condone the noncompliance mero
motu.
[19] In Sungay v Schliemann 6 Lekhuleni J correctly held that an appeal or
cross-appeal from the magistrates’ court that has lapsed may be reinstated
in terms of Rule27(1) of the Uniform Rules Once the court is satisfied that could
cause has been shown for non-compliance with the rules.
5 [2025] JOL 69740 (WCC) para 31
6 (A58/2023) [2023] ZAWCHC 134 (9 June 2023)
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[19] For the aforesaid reasons it is my considered view that this appeal has
lapsed. There is no application for condonation , and therefore the court
cannot resuscitate the appeal without an application for condonation for
failing to comply with Rule 50(4)(a).
[20] It is now a settled principle of our law that an award of costs is within the
discretion of the court. However, a successful party in litigation must be
awarded costs.
[21] In the result I propose the following order:
(a) The appeal is struck off the roll.
(b) The appellant is ordered to pay costs including costs of counsel to be
taxed on scale B.
_________________________
K F PHAHLAMOHLAKA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
I agree. It is so ordered.
________________________
S S MPHAHLELE
JUDGE PRESIDENT OF THE HIGH COURT
MPUMALANGA DIVISION
Appearances
For the Appellants: H J Lombard
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Instructed by: Wynand Prinsloo & Van Eeden Attorneys
For the Respondents: Adv Sias Nel
Instructed by: De Jager Hattingh Attorneys
Date reserved: 14 November 2025
Date delivered: 12 May 2026.