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[2013] ZASCA 5
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Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others (619/12) [2013] ZASCA 5; [2013] 2 All SA 251 (SCA) (11 March 2013)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 619/12
In the
matter between:
DENGETENGE
HOLDINGS (PTY) LTD
....................................................................
Appellant
and
SOUTHERN
SPHERE MINING AND
DEVELOPMENT
COMPANY LIMITED
........................................................
First
Respondent
RHODIUM
REEFS LIMITED
....................................................................
Second
Respondent
MINISTER
OF MINERALS AND ENERGY
................................................
Third
Respondent
DEPUTY
DIRECTOR-GENERAL: MINERAL REGULATION
DEPARTMENT
OF MINERALS AND ENERGY
......................................
Fourth
Respondent
REGIONAL
MANAGER: MPUMALANGA REGION,
DEPARTMENT
OF MINERALS AND ENERGY
..........................................
Fifth
Respondent
REGIONAL
MANAGER: LIMPOPO REGION,
DEPARTMENT
OF MINERALS AND ENERGY
.........................................
Sixth
Respondent
ABRINA
1998 (PTY) LTD
Seventh
Respondent
Neutral
citation:
Dengetenge Holdings (Pty) Ltd v Southern Sphere
Mining and Development Company Ltd & others
(619/12)
[2013]
ZASCA 5
(11 March 2013)
Bench:
NUGENT, PONNAN, SHONGWE and THERON JJA and ERASMUS AJA
Heard:
21 FEBRUARY 2013
Delivered:
11 MARCH 2013
Corrected:
Summary:
Failure to comply with rules of court – appeal lapsing –
application for condonation – factors to be
considered –
cumulative effect of such factors – condonation refused.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
North Gauteng High Court
(Pretoria) (Tuchten J sitting as court of first instance):
(a) The application for condonation is dismissed with costs.
(b) The applicant for condonation is ordered to pay the costs
incurred by the respondents in opposing the lapsed appeal.
(c) In both instances (a) and (b) the costs shall include the costs
of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (NUGENT, SHONGWE and THERON JJA and ERASMUS AJA
concurring):
[1] After the record had been filed in this matter the appeal lapsed
for failure on the part of the appellant (now the applicant)
–
Dengetenge Holdings (Pty) Ltd (Dengetenge) – to prosecute it by
timeously filing its heads of argument. The initial
question that is
before us is whether the default by Dengetenge should be condoned and
the appeal revived. Before turning to that
question it is convenient
to describe how the appeal arose and the circumstances in which it
came to lapse.
[2] The dispute in the matter pertains to prospecting rights for the
platinum group metals in respect of two properties situated
in the
Limpopo Province, namely Portion 1 and the remaining extent of
Boschkloof 331 KT (Boschkloof) and Portion 1 and the remaining
extent
of Mooimeisjesfontein 363 KT (Mooimeisjesfontein) (the properties).
After sub-division of those properties they came to
be transferred,
in accordance with the then spatial development policies of the
State, to the South African Bantu Trust and thereafter
vested in the
self-governing territory of Lebowa. In terms of s 12(1) of the Lebowa
Mineral Trust Act 9 of 1987 the mineral rights
in respect of the
properties vested in the Lebowa Mineral Trust (LMT). With the
adoption of our interim Constitution the ownership
of the properties
minus the mineral rights in respect thereof, which had been severed
from the land and vested in the LMT, reverted
to the Republic of
South Africa. And thereafter by virtue of
s 3(1)
(b)
of the
Abolition of Lebowa Mineral Trust Act 67 of 2000
the mineral rights
which had previously vested in the LMT vested in the Republic of
South Africa. Whilst the LMT was the holder
of the mineral rights it
had entered into a notarial mineral lease agreement and a prospecting
agreement in respect of the properties
with Southern Sphere Mining
and Development Company Ltd (Southern Sphere) and Rhodium Reefs Ltd
(Rhodium), the first and second
respondents respectively.
[3] On 7 April 2003 Rhodium applied in terms of the Mineral and
Petroleum Resources Development Act 28 of 2002 (the MPRDA), to
the
Minister of Minerals and Energy (the Minister) for a renewal of its
prospecting agreement with the LMT. Its application was
refused.
Rhodium immediately launched an urgent application in the then
Transvaal Provincial Division of the High Court. Neither
the
Minister, who was cited as the first respondent or the Deputy
Director-General: Mineral Regulation, Department of Minerals
and
Energy (Deputy DG), who was cited as the second, opposed the
application. The order which issued was:
'2. THAT, subject to 3 below:
2.1 the first respondent is
hereby interdicted and restrained from granting any rights in terms
of sections 17 and/or 23 of the
Mineral and Petroleum Resources
Development Act no. 28/2002
("the Act") in respect of the
portions of the remaining extent and portions 1 and 2 of the farm
Boschkloof 331 K.T.,
Mpumalanga Province which are the subject of the
applicant's application dated 27 October 2004 for a prospecting right
("the
properties"); and
2.2 the second respondent is
hereby interdicted and restrained from granting any rights in terms
of section 17 and/or 23 of the
Act in respect of the properties
arising from any delegation effected in his favour by the first
respondent.
2.3 the third respondent is
interdicted and restrained from accepting any application in respect
of the properties in terms of section
16 and 22 of the Act.
3. THAT the interdict set out in
2 above shall serve as a temporary interdict pending the final
determination of review proceedings
to be launched by the applicant
against the respondents, seeking the review and setting aside of the
decision in terms of section
17 of the Act by the first and/or second
respondents to refuse the applicants application dated 27 October
2004 for a prospecting
right in respect of the properties, on
condition that such review proceedings shall be initiated within 30
days from the date hereof.'
[4] On 2 December 2005 Rhodium instituted the envisaged review
application. That application was also unopposed. On 6 December
2006,
the following order issued:
'1. The refusal decision by the
First Respondent and/or the Second Respondent on the 14
th
of September 2005 taken in terms
of
section 17(2)
of the
Mineral and Petroleum Resources Development
Act, No. 28 of 2002
, not to grant the prospecting right applied for
by the Applicant in terms of an application for a prospecting right
relating to
platinum group metals and all minerals associated
therewith ("the prospecting right") in respect of Portions
1, 2 and
the remaining extent of the farm Boschkloof 331K in the
Magisterial District of Lydenburg ("the property"), is
hereby
reviewed and set aside;
2. The First Respondent and/or
the Second Respondent are directed to grant and issue to the
Applicant the prospecting right applied
for in respect of the
property;
3. The First Respondent is
directed to pay the costs of this application.'
[5] On 15 April 2005 Southern Sphere lodged with the Regional Manager
of the Department of Minerals and Energy, Limpopo (RM Limpopo)
an
application for a prospecting right in terms of
s 16
of the MPRDA in
respect of properties that it described as Boschkloof 331 KT and
Mooimeisjesfontein. On 4 October 2006 the RM Limpopo
informed
Southern Sphere that it had been granted a prospecting right in terms
of
s 17
of the MPRDA over Portion 1 and the remaining extent of
Boschkloof 331 KT and Portion 1 and the remaining extent of
Mooimeisjesfontein.
[6] On 7 February 2006 Dengetenge applied to the Regional Manager of
the Department of Minerals and Energy, Mpumalanga (RM Mpumalanga)
for
a prospecting right in respect of Portion 1 of Boschkloof and Portion
1 and the remaining extent of Mooimeisjesfontein. The
application was
granted on 23 August 2006 and registered with the Mineral and
Petroleum Titles Registration office on 28 November
2006. On 20
December 2005, Abrina 1998 (Pty) Ltd (Abrina), lodged an application
with the RM Mpumalanga for a prospecting right
in respect of the
remaining extent and Portion 2 of Boschkloof. That application was
accepted on 9 February 2006 and subsequently
granted on 26 July 2006.
[7] On 17 August 2007 the Director-General: Department of Minerals
and Energy wrote to Southern Sphere:
‘
1. I
refer to the abovementioned matter and wish to advise that the
Minister of Minerals and Energy has, after careful deliberation,
decided to withdraw the decision of the Deputy Director-General:
Mineral Regulation to grant a prospecting right to Southern Sphere
in
as far as it overlaps with the right granted to Rhodium Reefs in
respect of the properties in question.
2. The reasons for this decision
are as follows:
2.1 On or about 26 October 2005,
the Court granted an interdict by way of a court order, whereby the
Department was interdicted
from granting any rights in respect of the
properties forming the subject of an application for prospecting
rights by Rhodium Reefs
Limited, pending the finalization of review
proceedings to be instituted by Rhodium Reefs Limited.
2.2 In terms of a court order
dated 6 December 2006, the refusal decision was set aside and the
Department was directed to grant
and issue to the Applicant the
prospecting right applied for in respect of the property.
2.3 Subsequent to the above
Court Order, the Minister was made aware by the attorneys of the
Applicant "Rhodium Reefs"
that your client has been granted
a right which extends to the properties granted to Rhodium Reefs
Limited in terms of the Court
Order.
2.4 It is evident that the
granting of the prospecting right in respect of the "Rhodium
properties" to your client was
an unfortunate error, and is in
contravention of both Orders of Court and as such may result in
Contempt of Court proceedings being
instituted against the Minister.
2.5 After careful deliberation,
the Minister has therefore now decided that the only legal manner to
rectify the situation, would
be to invoke the provisions of section
103(4) of the Act, and to withdraw the granting of the right to
Southern Sphere in as far
as it overlaps with the right granted to
Rhodium Reefs in respect of the properties in question.
3. The effect of this decision
is therefore that your prospecting right is hereby amended to include
the area applied for by your
client, but excluding the properties
awarded to Rhodium Reefs in terms of the Court Order of 6 December
2006.'
[8] Against that backdrop, Southern Sphere launched a review
application in the North Gauteng High Court. It cited the Minister,
the Deputy DG, the RM Mpumalanga, the RM Limpopo, Rhodium, Abrina and
Dengetenge as the first to seventh respondents respectively.
Southern
Sphere sought various orders, not all of which are relevant for
present purposes. After initially opposing the application,
Abrina
withdrew its opposition. Affidavits were filed on behalf of the
Minster, the Deputy DG and the Regional Managers, not with
a view to
opposing the relief sought, but, as it was put, to assist the court
below. The matter came before Tuchten J who made
inter alia the
following orders:
‘
3.
THAT the decision of the third respondent as delegate of the first
respondent to award to the seventh respondent ("Dengetenge")
prospecting rights for the platinum metals group as contemplated in
Section 17 of the MPRDA over one or more properties is reviewed
and
set aside ….
4. It is declared and directed
that:
4.1 The first respondent validly
took the decision in terms of Section 103(4) of the MPRDA which was
communicated to the applicant's
attorneys of record on 3 September
2007;
4.2 The applicant ("Southern
Sphere") has been validly awarded prospecting rights over the
northern parts of Portion 1,
Portion 2 and the Remaining Extent of
Boschkloof 331 KT and Mooimeisjesfontein 363 KT;
4.3 The fifth respondent
("Rhodium") has been validly awarded prospecting rights
over the southern parts of Portion 1,
Portion 2 and the Remaining
Extent Boschkloof 331 KT;
4.4 The common boundary between
the northern and southern parts of Boschkloof 331 KT is as depicted
on the map, which forms an annexure
to this relation to the
properties or any of them;
4.5 Save as set out in this
order, no prospecting rights has validly been granted in relation to
the properties or any of them;
4.6 Any mineral titles, such as
there may be, registered under the provisions of the Mining Titles
Registration Act, 16 of 1967,
in favour of the Abrina or Dengetenge
over any of the properties must forthwith be cancelled;
4.7 The first, second, third and
fourth respondents (collectively "the DME respondents")
must, without delay, do all things
and take all such steps as may be
necessary to give effect to the grant of prospecting rights to
Southern Sphere over the northern
parts and to Rhodium over the
southern parts of Boschkloof 331 KT as set out in this order.’
[9] On 17 June 2011 Dengetenge obtained leave from the high court to
appeal to this court. After obtaining two extensions of time
Dengetenge filed the record of appeal with the registrar of this
court on 15 December 2011. That meant that its heads of argument
had
to have been filed by 23 February 2012 (SCA Rule 10). Appreciating,
it would seem, that it would be unable to meet that deadline
Dengetenge sought the consent of the other parties to the matter for
the late filing of its heads by 13 April 2012. Although the
Minister
and the State functionaries (who had been cited as respondents in the
high court) took no part in the appeal, the State
Attorney consented
to the late filing of the heads of argument. Southern Sphere and
Rhodium did not. Dengetenge was thus forced
to file a substantive
application for condonation with the registrar of this court. That
application only reached the registrar
on 24 February 2012 by which
stage the appeal had already lapsed. By way of a letter dated 2 March
2012 the registrar notified
Dengetenge that its appeal had lapsed due
to non-compliance with the rules of this court. An application for
condonation was thus
required to revive it (
Court v Standard Bank
of SA Ltd; Court v Bester NO & others
[1995] ZASCA 39
;
1995 (3) SA 123
(A) at
139 F-H).
[10] On 8 March 2012 Southern Sphere’s attorney wrote to
Dengetenge’s attorney ‘there is no need for our clients
to respond to your client’s application dated 23 February 2012
as your client’s appeal has lapsed’. That letter,
as also
the earlier one from the registrar, failed to elicit a response.
After a silence of some four months, on 12 July 2012 Dengetenge
served on Southern Sphere a copy of an application for condonation
and reinstatement of the appeal. When it was pointed out to
Dengetenge that its heads of argument had still not been filed, it
re-served those documents on 27 August 2012 accompanied by its
heads
of argument. The heads of argument were thus some six months late.
[11] Factors which usually weigh with this court in considering an
application for condonation include the degree of non-compliance,
the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the court
below, the
convenience of this court and the avoidance of unnecessary delay in
the administration of justice (per Holmes JA in
Federated
Employers Fire & General Insurance Co Ltd & another v
McKenzie
1969 (3) SA 360
(A) at 362F-G). I shall assume in
Dentenge’s favour that the matter is of substantial importance
to it. I also accept that
there has been no or minimal inconvenience
to the court. I, however, cannot be as charitable to the appellant in
respect of the
remaining factors.
[12] In
Uitenhage Transitional Local Council v South African
Revenue Service
2004 (1) SA 292
(SCA) para 6 this court stated:
'One would have hoped that the
many admonitions concerning what is required of an applicant in a
condonation application would be
trite knowledge among practitioners
who are entrusted with the preparation of appeals to this Court:
condonation is not to be had
merely for the asking; a full, detailed
and accurate account of the causes of the delay and their effects
must be furnished so
as to enable the Court to understand clearly the
reasons and to assess the responsibility. It must be obvious that, if
the non-compliance
is time-related then the date, duration and extent
of any obstacle on which reliance is placed must be spelled out.'
[13] What calls for some acceptable explanation is not only the delay
in the filing of the heads argument, but also the delay in
seeking
condonation. An appellant should, whenever it realises that it has
not complied with a rule of court, apply for condonation
without
delay (
Commissioner for Inland Revenue v Burger
1956 (4) SA
446
(A) at 449 G-H). There are huge gaps in the chronological
sequence advanced by Dengetenge. But what is evident is that from 2
March
2012 it knew that its appeal had lapsed on account of its
failure to file its heads with the registrar of this court by 23
February
of that year. From then onwards it must have been quite
clear to it that an application for condonation was necessary. And
yet
aside from an abortive attempt on 12 July it did nothing until 27
August 2012. The closest that one gets to anything amounting to
an
explanation for the delay is the following from the affidavit of
Dengetenge’s attorney filed in support of the application
for
condonation:
'22. ... Subsequent thereto, and
whilst Counsel were busy with preparation for the Heads of Argument,
it was discovered during the
second week of April 2012 that there
were important documents, including the final judgment and order of
the Court
a quo
appealed against, which were
missing from the record of the appeal lodged on 15 December 2011. The
other documents included the
processes filed by the parties in April
2011, pursuant to an invitation of the Court
a
quo
in terms of
paragraph 5 of its judgment and order of 24 February 2011 and 1 March
2011.
23. It was also important for
the Heads of Argument and chronology table that the said documents be
part of the record of the appeal,
inasmuch as they were critical, in
our humble submission, for purposes of the proper ventilation and
adjudication of the appeal.
It was thus advised by Counsel that for
purposes of finalisation of the Heads of Argument, Practice Note,
chronology table and
certificate, a request should be made to the
transcribers to prepare a supplementary volume of the record of the
appeal. That was
outright attended to by my office and included a
request to the Court
a
quo
to provide us
with the final written judgment and order pursuant to the hearing of
29 April 2011 which involved a reconsideration
of paragraph 4 of the
order of 24 February 2011 and/or 1 March 2011 above.'
Those averments raise more questions than they answer. There is no
attempt to relate them to a coherent time-frame or to fully
enlighten
the court as to the relevance and materiality of those documents or
why the heads of argument could not have been filed
in their absence.
Moreover, as Rhodium, in its opposition to the application for
condonation, makes plain:
'13.9. The absence of the
submissions and, in addition, the
"final
written judgment and order pursuant to the hearing of 29 April 2011"
from the appeal has no bearing
on the outcome of this appeal in terms of the Appellant's notice of
appeal. The final order granted
by the court
a
quo
dealt exclusively
with an issue as between the first and second respondents about the
north-south divide of the properties. The
grounds of appeal raised by
the Appellant in terms of its notice of appeal all pertain to the
judgment of the court
a
quo
dated 24 February
2011.'
I should perhaps add that none of those documents were referred to in
argument before us. The suspicion thus remains that the explanation
advanced by Dengetenge is disingenuous and contrived. But even were
it to be accepted, the explanation proffered is woefully inadequate.
It falls far short of explaining the deathly silence by Dengetenge
upon its learning that the appeal had lapsed or why it took
some six
months to launch the application for condonation. I would thus find
it impossible to hold that the delay in bringing this
application has
been explained in a manner which is even remotely satisfactory.
[14] I now turn to the respondents’ interest in the finality of
the judgment of the court below. Both Southern Sphere and
Rhodium
state that once the appeal had lapsed the prospecting rights granted
by the Minister to each of them became effective.
Southern Sphere
commenced prospecting operations on the properties during March 2012,
which, so it contends, it was obliged to
do in terms of section
19(2)
(b)
of the MPRDA. And as at July 2012 had incurred direct
prospecting costs on the project of approximately R6 million. Rhodium
states
that it has already expended in the region of R1, 2 million
and its forecasted cost for the compilation of its environmental
impact
assessment is R1,928 million. As it puts it: ‘While not
all of this cost has actually been incurred yet, the process has been
commissioned and a portion thereof has been incurred and the balance
thereof will have to be settled soon so as to comply with
the
requirements set out in the above mentioned letter of acceptance of
Rhodium's mining right application.’ Those amounts,
according
to the respondents, would be placed at risk if Dengetenge is given
the opportunity to re-instate the lapsed appeal. Most
of those costs
according to both respondents had been incurred by them when they
believed that they had legal certainty in consequence
of the appeal
having lapsed and there was no indication by Dengetenge that it
intended seeking its re-instatement. Furthermore,
according to
Southern Sphere, it has
‘
sold
shares to investors in order to fund the prospecting operations.
These shares were sold to both local and international investors
on
the premise that the Appeal had lapsed. Shares were also sold to the
local communities residing on the properties representing
some 32 000
people who have very high expectations of being involved in the
project's success. It has taken the First Respondent
many years to
establish a strong working relationship with the local communities,
and the damage that would be caused to community
relations if the
project was now placed on hold or otherwise delayed could well be
irreversible’.
None of those allegations are disputed by Dengetenge. Nor, it seems
to me, could they be. It must accordingly be accepted that
both
respondents have been severely prejudiced by Dengetenge's delay in
prosecuting the appeal.
[15] Given the flagrant breach that one encounters here coupled with
the failure to advance an acceptable explanation therefor,
as also
the very evident prejudice to the respondents, we may well have been
entitled to refuse the indulgence of condonation irrespective
of the
merits of the appeal (
Blumenthal & another v Thomson NO &
another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121I). But, faced with some
explanation, albeit one that appeared inadequate and perhaps even
lacking in candour, counsel
was directed to address the merits of the
appeal so as to enable us to assess the Dengetenge's prospects of
success and to weigh
that together with the other factors.
[16] At the commencement of the argument before the high court
counsel who then represented Dengetenge, placed the following on
record:
'
[COUNSEL]
ADDRESSES COURT
: As
the court pleases, My Lord. My Lord, the seventh respondent concedes
that in so far as the relief is sought by the applicant
in its notice
of motion and by the fifth respondent in its counter application to
review and set aside the decision to grant it
a prospecting right …
[intervened]
COURT
:
Grant whom a prospecting right?
[COUNSEL]
:
The seventh respondent My Lord.
COURT
:
Yes?
[COUNSEL]
:
It concedes that the grant of that right was unlawful.
COURT
:
That is quite an important concession.
[COUNSEL]
:
It is indeed My Lord.
COURT
:
So I had better make a careful note of it. Concedes that the grant …
[indistinct]. You concede … [intervened
[COUNSEL]
:
My Lord, in the … [intervened]
COURT
:
Excuse me. I want to just make sure that I have got it right. You
concede that the grant of a prospecting right to the seventh
respondent was unlawful?
[COUNSEL]
:
That is correct.
COURT
:
Seventh respondent is Dengetenge. Can we call it Dengetenge?
[COUNSEL]
:
As the court pleases, My Lord.
COURT
:
To make it easier for me. Yes?
[COUNSEL]
:
My Lord, as obviously will appear from my argument when I address
Your Lordship, the basis of that concession is that the grant
was in
the face of an interdict.
. . .
[COUNSEL]
:
My Lord, where that leaves the seventh respondent, where that leaves
Dengetenge, is that what we will be addressing Your Lordship
on, is
purely what the appropriate relief should be following, on consequent
upon concession. In other words, what is a just and
equitable remedy
following the setting aside of the right to it. And that is my
submissions to Your Lordship will be based on that.
Obviously My
Lord, I will make submissions on the rights that Southern Sphere the
applicant has and the rights that Rhodium has
as well. But in so far
as Dengetenge goes My Lord, my submissions will be limited to what is
the just and equitable remedy in the
circumstances.
COURT
:
Thank you.'
[17] In the light of what occurred before the high court there can be
no doubt that Dengetenge’s counsel abandoned its opposition
to
the application (
Kannenberg v Gird
1966 (4) SA 173
(C) at
181-183). That being so, Dengetenge cannot, on appeal, seek to
advance a case that was specifically abandoned before the
court below
(
Wolfowitz & Wolfowitz v Fresh Meat Supply Co Ltd
1908 TS
506
at 512;
Gcayiya v Minister of Police
1973 (1) SA 130
at
135F-G). But, says counsel who argued the matter for Dengetenge in
this court, notwithstanding its having eschewed in clear
and
unequivocal terms its opposition to the application in the court
below, the high court was obliged to
mero motu
go behind
counsel’s submission to determine whether it was correctly
made. In my view, such a proposition, for which one
finds no support
in our law, merely has to be stated to be rejected. But even if there
was such an obligation on the high court,
I can hardly see how it
could have come to any other conclusion but that the grant of a
prospecting right to Dengetenge in the
face of an interdict which
specifically prohibited that was unlawful. A further string to
counsel’s bow was that even though
the Minister and State
functionaries (who had been cited as respondents in that case) had
chosen, in their wisdom, not to oppose
the grant of the interdict,
they were free to simply disregard that order of court. Once again I
cannot agree. For, as Froneman
J observed in
Bezuidenhout v
Patensie Sitrus Beherend BPK
2001 (2) SA 224
(E) at 229 B-C:
'An order of a court of law
stands until set aside by a court of competent jurisdiction. Until
that is done the court order must
be obeyed even if it may be wrong
(
Culverwell v Beira
1992 (4) SA 490
(W) at 494A-C).
A person may even be barred from approaching the court until he or
she has obeyed an order of court that has not
been properly set aside
(
Hadkinson v Hadkinson
[1952] 2 All ER 567
(CA);
Bylieveldt v Redpath
1982 (1) SA 702
(A) at 714).'
Moreover, it bears re-iterating that respect for the authority of the
courts, which is foundational to the rule of law, often serves
as the
bulwark against anarchy and chaos.
[18] Individually weighed - on each of the three factors the scales
are tipped against condoning the default and reviving the appeal.
Cumulatively - they are decisive against it. The superficial manner
in which the application was prepared and the lack of attention
to
matters which obviously called for an explanation, taken together
with the undoubted prejudice that the respondents have shown
and the
non-existent prospects of success on appeal renders it impossible to
justify the grant of condonation.
[19] In the result:
(a) The application for condonation is dismissed with costs.
(b) The applicant for condonation is ordered to pay the costs
incurred by the respondents in opposing the lapsed appeal.
(c) In both instances (a) and (b) the costs shall include the costs
of two counsel.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: D B Ntsebeza SC (with him G Shakoane and L Mashapa)
Instructed
by:
Denga
Incorporated, Johannesburg
Phatshoane
Henney Attorneys, Bloemfontein
For
First Respondent: G Kairinos
Instructed
by:
Badal
Attorneys, Rosebank
Honey
Attorneys, Bloemfontein
For
Second Respondent: G L Grobler SC (with him J L Gildenhuys (Ms))
Instructed
by:
Edward
Nathan Sonnenbergs, Johannesburg
McIntyre
& Van der Post, Bloemfontein