Case Name:
Votani Majola v Nitro Securitisation (567/10)[2011] ZASCA 180 (30 September 2011)

Area of law:
Dismissal of Appeal for non-appearance-Rule 13(3) of the Supreme Court Rules

Brief summary of facts:
Wesbank entered into a written instalment sale agreement with Mr Majola (“Appellant”) in terms of which it sold and delivered to him a Jaguar motor vehicle (“Jaguar”). The Appellant failed to pay his monthly instalments and thus gave Wesbank the right to cancel the agreement and take back possession of the Jaguar. Wesbank ceded its rights to Nitro Securitisation 1 (Pty) Ltd (“Respondent”) in terms of the agreement.

The Respondent issued summons out of the South Gauteng High Court and then later applied for summary judgment in which it sought the return of the Jaguar and costs on an attorney and client scale. Summary judgment was granted on 20 November 2009.

The Appellant then appealed to the SCA against the judgment granted in the SGHC. Neither the appellant nor his legal representative appeared on the date of hearing. As a result, an order was made striking the appeal from the roll, ordering the Appellant to pay the wasted costs on an attorney client scale, ordering that the appeal was not to be set down again unless the Appellant had provided proof that the wasted costs had been paid in full and directing that when the Appellant set the matter down for hearing, he would have to give a full explanation for his absence.

The Appellant took no steps and didn’t pay the wasted costs. As a result the Respondent wrote to the President of the SCA and requested the matter be set down for hearing despite the Appellant not having complied with the order. The matter was therefore set down. The Appellant then wrote to the Registrar of the court and stated that certain directives (i.e the court order handed down) had to be complied with before the matter could be set down. The Registrar confirmed that the matter would still be set down and informed the Appellant that his failure to appear may lead to a dismissal of the appeal with costs.

On 19 September 2011, the matter was called up and again there was no appearance from the Appellant. The Respondent informed the court that his instructing attorney was advised by the Appellants attorney that they would not be present. All attempts taken to contact the Appellant proved fruitless.

The court is able to exercise its discretion in favour of an absent appellant and either strike the matter from the roll or postpone it. The facts surrounding the Appellant’s absence, the position of the Respondent and the Appellant’s prospects of success were considered. In this case, the court found that nothing operated in the Appellant’s favour.

The appeal was therefore dismissed in terms of Rule 13 (3) of the Supreme Court of Appeal which provides that if an appellant fails to appear on the date of the hearing of an appeal, the appeal shall be dismissed for non-prosecution, unless the court otherwise directs.

Importance/Value:
Unless the court elects to exercise its discretion, an appeal will be dismissed with costs if an appellant fails to attend at court.

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