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[2018] ZAWCHC 55
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Osman v Anirudhra and Another (19620/17) [2018] ZAWCHC 55 (2 May 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case number 19620/17
In
the matter between
LIYAQAT
OSMAN APPLICANT
And
GANES
ANIL ANIRUDHRA FIRST
RESPONDENT
XIUYAN
LI SECOND
RESPONDENT
CORAM:
FORTUIN J; THULARE AJ
DATE:
JUDGMENT
THULARE
AJ
[1] The applicant sought
a declaratory order that the respondents’ appeal from the
magistrates’ court had lapsed. The
respondents conceded that
the appeal had lapsed. The applicant is no longer proceeding with his
application, and only asks that
the respondents be ordered to pay the
costs thereof. What remains to be decided in this matter now is a
counter application brought
by the respondents for the reinstatement
of the appeal.
[2] Applicant issued
summons against the respondents on 7 November 2016 which was served
on 14 November 2016. On 16 November 2016
the respondents filed a
notice of intention to defend. The applicant filed an application for
summary judgment which the respondents
opposed. The application was
argued on 28 February 2017 and the magistrate delivered her judgment
on 11 April 2017.
[3] The respondents noted
the appeal against the judgment of the magistrate on 2 May 2017 and
filed their notice of appeal and the
requisite bond of security. On
or about 30 May 2017 a candidate attorney, Ricardo Abrahams attended
to the magistrates’ courts
in Cape Town to uplift the record in
order to have them transcribed. Abrahams was advised to request the
record by e-mail from
Ms Lorraine Mafa, a clerk of the court, and
dispatched the request the same day.
[4] Abrahams attended to
the offices of the clerk of the court at the courthouse a number of
times and followed up with e-mails,
and according to him received no
response to his request for the record. It was only when he elevated
his request to the Court
Manager on 5 October 2017, that a day after
his e-mail to the Court Manager, the Court Manager informed him that
there is no recording
and that the attorney was informed of same. On
12 October 2017 Abrahams attended to the office of the clerk of the
court to attend
to the court file and provided same to the
transcribers and on 27 October 2017 the respondents launched their
counter-application.
[5]
On the other hand, when applicant noticed that the respondents did
not apply for a date for hearing of the appeal within 40
days, which
is by 29 June 2017, and further did not prosecute the appeal within
60 days, which is by 27 July 2017, the applicant
sought to execute
the judgment. On 5 September 2017, advised that the appeal had
lapsed, Muhsin Jaffer on behalf of the applicant
attended to the
magistrates’ court to lodge a warrant of execution. Various
visits followed but the applicant was unsuccessful
in the endeavours
to get the warrant issued, and the clerks would not issue the
warrant. Jaffer was informed that the magistrate
insisted that he
produce proof that the appeal had lapsed as there were no notes from
the typists at the High Court that the appeal
had lapsed. Jaffer was
informed later by an unnamed clerk of the court that the magistrate
had advised that the warrant could only
be granted if an application
is granted by the High Court, declaring that the appeal had lapsed.
Applicant avers that his application
is being brought as a result of
advice received from the clerk of the magistrate’s court, Cape
Town. He avers that that court
is refusing to issue the warrant
without the granting of the current application. This, avers
applicant, is done despite the advice
received from counsel, that the
appeal had lapsed
ex
lege,
and that such
an application is not strictly necessary.
[6] The papers and heads
of arguments submitted by the parties raise three issues, in my view,
to wit:
(a) which Rule of the
Uniform Rules of Court applies to what the parties elected to term an
application for the reinstatement of
an appeal from the Magistrates’
Courts’ which had lapsed,
(b) what test is to be
applied to such application, and
(c) whether the
respondents have met that test.
[7] Rule 51(9) of the
Magistrates’ Courts Rules of Court provides as follows:
“
51
Appeals in civil cases
(9) A party noting an
appeal or a cross appeal shall prosecute the same within such time as
may be prescribed by rule of the court
of appeal and, in default of
such prosecution, the appeal or cross-appeal shall be deemed to have
lapsed, unless the court of appeal
shall see fit to make an order to
the contrary.”
[8] Rule 50(1) of the
Uniform Rules of Court provides as follows:
“
50
Civil appeals from magistrates’ courts
(1)
An appeal to the court against the
decision of a magistrate in a civil matter shall be prosecuted within
60 days after the noting
of such appeal, and unless so prosecuted it
shall be deemed to have lapsed.”
The prosecution of an
appeal means, within 40 days of noting the appeal, an application by
the appellant to the registrar in writing
and with notice to all
other parties for the assignment of a date for the hearing of the
appeal and the making at the same time
available to the registrar in
writing his full residential and postal addresses and the address of
his attorney if he is represented
[Rule 50(4)(a) of the Uniform Rules
of Court].
[9] In the absence of
such an application by the appellant, the respondent in the appeal
may at any time before the expiry of the
period of 60 days referred
to in subrule (1) apply for a date of hearing [Rule 50(4)(b)]. Upon
such application from the respondent,
the appeal shall be deemed to
be duly prosecuted [Rule 50(4)(c)]. [10] The applicant, who is the
respondent in the appeal, is trying
his best to shift the focus of
the judicial spotlight to the court personnel at the magistrates’
court Cape Town. What applicant
fails to do, is to set out facts with
sufficient particularity to enable the court to understand why he did
not or was unable to
apply to the registrar in writing and with
notice to all other parties for the assignment of the date for the
hearing of the appeal
and at the same time make available to the
registrar in writing his full residential and postal addresses and
the address of his
attorney. In the absence of any explanation, I can
arrive at no other conclusion than that the applicant had no reason
as to why
he did not prosecute the appeal, which was an avenue
available to him.
[11] It is a sad day to
learn that legally trained officers of the court are allegedly being
led, on legal processes, by the administrative
support services, in
particular clerks of the court, at the courthouse. I use the word
“allegedly” as the applicant
could have done more if he
wanted me to accept his version as set out in the papers, to wit,
that the clerk of the court refused
to do an act which by law she was
empowered to do. There is nothing on the papers before me, which is a
record of the decision
of the clerk of the court, to refuse to issue
a warrant.
[12]
The record shows that where the attorneys had difficulty with the
work ethic or output of the clerks of the court, such was
elevated to
the Court Manager, Mrs Talip-Temoore, and that she intervened
expeditiously. In my view, there is no reason to doubt
that if indeed
the clerk had refused to issue the warrant, there would either be a
record of such refusal communicated in writing
to the attorneys as
the Court Manager did in other instances, or she would have
intervened to assist the attorneys. The Court Manager’s
direction to the clerk of the court to issue the warrant would have
resolved the matter instantly. I have no doubt that where the
clerk
still refused to execute what she may have deemed as an unlawful
direction by the Court Manager, armed with a refusal by
the clerk of
the court, the applicant would have either
ex
parte
or on notice
applied to the magistrates’ court for the review of the
decision of the clerk of the court in terms of
Section 13(2)
of the
Magistrates’ Courts Act 32 of 1944
. This did not happen and
remain unexplained by the applicant.
[13] I am not persuaded
that the applicant’s steps have been shown to have been
frustrated by the Cape Town magistrates’
court staff. I am not
inclined to accept that an attorney at law would accept instructions
from a clerk of the court on how to
go about to enforce a judgment. I
am not persuaded that the applicant has shown that a magistrate at
the magistrates’ courts
had ordered that a warrant could only
be granted if an application is granted by a High Court, declaring
the appeal to have lapsed,
where the appeal had lapsed by operation
of law. Applicant’s own version hereon is based on hearsay, and
there is no court
order to that effect from a magistrate. If there
was one, I am sure that the applicant would have delivered it. As a
result I am
not persuaded that the applicant has shown that an
application to the High Court to declare the appeal order to have
lapsed was
a necessary step to execute upon the judgment, under the
circumstances.
[14] Rule 50 of the
Uniform Rules of Court, which regulates civil appeals from the
magistrates’ courts, does not have a provision
similar to a
provision in Rule 49 which regulates civil appeals from the High
Court. Rule 49(6)(b) reads as follows:
“
49
Civil appeals from the High Court
(6)(b) The court to
which the 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.”
[15] Rule 51(9) of the
Magistrates’ Courts Rules of Court places the prosecution of a
civil appeal from the magistrates’
courts within the timelines
as provided for by the rules of the court of appeal, and further that
the court of appeal may in default
of timeous prosecution of the
appeal, make an order contrary to the lapse of that appeal, which
lapse is by operation of law. It
follows that an order to reinstate
an appeal or cross - appeal which has lapsed, is an order ordinarily
made on application by
an appellant or cross – appellant.
Notice of such application for reinstatement to the clerk of the
court is sufficient for
the clerk to refuse to issue a warrant of
execution based on a judgment which is the subject matter of the
appeal.
[16] The relief sought by
the respondents in the counter-appeal, to wit, the restatement of the
appeal which had lapsed, is a matter
that directly affects the appeal
as its consideration determines whether the respondents have a right
to proceed with the appeal
or not. It necessarily involves a
consideration of the merits of the appeal. The respondents in
effect seek an extension
of the time period provided by Rule 50(1) of
the Uniform Rules of Court, and underlying that extension an order to
cancel the results
of the expiry of the time provided as prescribed,
which result flow from the non-compliance. The object of this
application is
for the respondents to get the leave of the court to
pursue an appeal, and if successful to pursue their defense. The
respondents
seek both the extension of time and the removal of the
bar (the lapse of the appeal) to enable them to pursue the appeal.
[17] Rule 27(1) and (2)
of the Uniform Rules of Court provides as follows:
“
Extension
of time and removal of bar and condonation
(1)
In the absence of agreement
between the parties, the court may upon application on notice and on
good cause shown, make an order
extending or abridging any time
prescribed by these rules or by an order of court or fixed by an
order extending or abridging any
time for doing any act or taking any
step in connection with any proceedings of any nature whatsoever upon
such terms as to it
seems meet.
(2)
Any such extension may be ordered
although the application therefor is not made until after expiry of
the time prescribed or fixed,
and the court ordering any such
extension may make such order as to it seems meet as to the
recalling, varying or cancelling of
the results of the expiry of any
time so prescribed or fixed, whether such results flow from the terms
of any order or from these
rules.”
The applicant opposes the
respondents’ application. There is no agreement between the
parties on the extension of the time
periods provided by Rule 50(1)
of the Uniform Rules of Court, and there is no agreement for the
removal of the results of the expiry
of those time periods
prescribed, which results flow from non-compliance with the rule. In
my view, Rule 27 (1) and (2) is the
rule that applies to an
application of the nature sought by the respondents. The rule itself
sets out the test, to wit, that the
respondents must show good cause.
[18] The relief sought is
a procedural relief. The respondents must at least furnish an
explanation of their default sufficiently
full to enable the court to
understand how it really came about that they did not comply with the
timelines prescribed by the rule,
and to assess their conduct and
motives [
Silber v Ozen Wholesalers (Pty) Ltd
1954(2) SA 345
(A) at 353A]. Inherent in this application is the lifting of
the bar placed by the lapse. Discussing applications
for procedural
relief, it was said in
United Plant Hire (Pty) Ltd v Hills and
Others
1976(1) SA 717 (A) at 720E-G:
“
It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon
a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefore, the prospects of success on
appeal,
the importance of the case, the respondent’s interest in the
finality of his judgment, the convenience of the court,
and the
avoidance of unnecessary delay in the administration of justice. The
list is not exhaustive.
These factors are not
individually decisive but are interrelated and must be weighed one
against the other; thus a slight delay
and a good explanation may
help to compensate for prospects of success which are not strong.”
The
position of a litigant who is out of time but has not been barred and
seeks an extension of time to comply with the timeline
for
furtherance of the court process, is not different from the position
of one who has been barred [
Dalhouzie
v Bruwer
1970(4) SA
566 (CPD) at 571H].
[19] The conduct of the
respondents after the judgment was granted, indicate a desire on the
part of the respondents to appeal the
decision of the magistrate. It
cannot be gainsaid that it was only late that they discovered that
they were pursuing production
of an electronically or digitally
constructed record of proceedings which did not exist, and that as
soon as the Court Manager
advised them that the proceedings were not
electronically or digitally recorded, they proceeded with action in
furtherance of their
desire to appeal the decision of the magistrate.
Despite the criticisms that can be leveled against them, I am
satisfied with the
respondent’s substantive explanation for the
delay.
[20] The dispute between
the parties arose out of a written agreement for the purchase of
immovable property and further agreements
entered in relation
thereto. In their opposition to summary judgment the respondents
placed the purchase price as alleged by the
applicant in dispute. The
payments made by the respondents and already received by the
applicant were placed in issue. The respondents
raised the question
whether the National Credit Act was applicable to that credit
agreement. The other question raised was whether
the applicant should
have been registered as a credit provider in terms of the Act and the
effect of failure to register on the
agreement between the parties.
The other issue raised related to whether the amounts other than the
capital amount charged in the
sale of the immovable property was
interest or not and, therefore whether the agreement was a credit
facility or an incidental
credit agreement.
[21]
In a summary judgment application, all that the Court enquires into
is: (a) whether the defendant had “fully” disclosed
the
nature and grounds of his defense and the material facts upon which
it is founded, and (b) whether on the facts so disclosed
the
defendant appears to have, as to either the whole or part of the
claim, a defense which is both bona fide and good in law [
Maharaj
v Barclays National Bank (Ltd)
1976(1)
SA 418 (A) at 426. It is not for the court to determine, in that
application, the issues so crystallised.
[22] In my view, another
court may find that the defendants have set out material facts upon
which their defenses are based with
sufficient particularity to
establish a bona fide defense and are entitled to defend the claim.
There are prospects of success
on the appeal. The weight of the
explanation for the delay and the prospects of success in the
circumstances are sufficient to
meet the good cause which the
respondents had to show. My assessment of the opposition to this
counter-application is that I am
not persuaded that the applicant has
placed before me facts which could reasonably be expected to affect
my discretion with regard
to the granting of the relief sought by the
respondent, for these reasons I would make the following order:
1.
In respect of the applicant’s
application for a declaratory order, no cost order is made.
2.
The time period prescribed by Rule
50(1) of the Uniform Rules of Court is herewith extended for a
further period of 20 days from
the date of this judgment.
3.
The lapse of the appeal, noted by the
respondents against the decision of the magistrate, is cancelled.
4.
The respondents are granted leave to
prosecute the appeal.
5.
No cost is order made.
…………………………………………………
..
DM THULARE
ACTING JUDGE OF THE HIGH
COURT
I agree.
………………………………………………………………………
..
CM FORTUIN
JUDGE OF THE HIGH COURT
Counsel
Appellant:
Advocate R Acton
Respondent:
Advocate A Titus
Instructing
Attorneys
Appellant:
MZ Barday and Associates
Respondent:
Raseroka and Associates
JUDGMENT
READ AND DAY(S) IN COURT: 02 May 2018