Brief Summary

Appeal — Dismissal of appeal — Application for dismissal based on alleged non-compliance with court rules — Appellant sought condonation for late filing of appeal record and related documents — Respondent's application for dismissal of appeal due to alleged lapse — Court held that it lacks jurisdiction to dismiss appeal already on roll of Full Court — Appeal deemed lapsed due to failure to file appeal record within stipulated time — Condonation for reinstatement of lapsed appeal to be adjudicated by Full Court.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings concerned an interlocutory application in the Gauteng Local Division, Johannesburg, arising from a pending Full Court appeal under case number A5008/2021. The matter came before a single judge (Strydom J) primarily because the respondent in the appeal sought relief relating to the continuation of the appeal and the procedural consequences of alleged non-compliance with the Uniform Rules of Court and applicable practice directives.

The parties were former spouses (their identities redacted in the reported version). In the interlocutory proceedings, M.D.M was the applicant (and respondent in the appeal), and L.B.M was the respondent (and appellant in the appeal). The respondent in the appeal (M.D.M) initially brought an application seeking the dismissal of the appeal on grounds of non-compliance. The appellant (L.B.M) opposed and filed a counter-application for condonation relating to delays and non-compliance in the prosecution of the appeal, including the late filing of the appeal record and related documents.

Procedurally, the appeal had previously been enrolled before the Full Court on 5 October 2022, but it was not heard. The Full Court removed the appeal from the roll and ordered that the appellant correct the appeal record within 30 days, failing which the appeal could not be re-enrolled. After that order, the respondent pursued the earlier interlocutory application in the motion court, contending that the record had not been corrected and that the appeal should be dismissed or treated as having lapsed.

The general subject-matter of the dispute in this interlocutory judgment was not the merits of the underlying matrimonial accrual dispute, but rather the procedural fate of the appeal and related interlocutory applications, including whether a single judge had jurisdiction to grant the substantive relief sought (dismissal of a Full Court appeal or a declaration of lapsing), and how the matter should properly be brought back before the Full Court.

2. Material Facts

The court treated the following procedural history as material to the issues it had to determine. The respondent had launched an application for the dismissal of the appellant’s appeal based on alleged non-compliance with the rules and directives. The appellant filed an opposing affidavit explaining delays, particularly that it took an extended period to obtain a properly transcribed record, which in turn delayed the allocation of an appeal hearing date. The appellant also brought a counter-application seeking condonation for the late filing of the record, heads of argument, and a practice note.

It was common cause that the appeal was allocated for hearing before the Full Court on 5 October 2022, but that the Full Court did not hear the matter and instead removed it from the roll on the basis that the appeal record was not in order. The Full Court ordered that the appellant correct the record within 30 days before again setting the appeal down for hearing.

A material point of dispute (identified by the court as central to the later procedural impasse) was whether the appeal record had in fact been corrected. The respondent alleged that the record was never corrected within the 30-day period (or thereafter). The appellant, by contrast, maintained that the record was “correct all along” or that any issues were limited to indexing and pagination related to uploading the record on CaseLines.

Further chronology accepted by the court as material included that the appellant applied for a further allocation of a hearing date on 3 April 2023, and in a “Directive Compliance Affidavit” the appellant’s attorney stated under oath that the appellant had complied with the Full Court order and corrected the appeal record as reflected on CaseLines. Notwithstanding that assertion, the court noted that, as could be ascertained from CaseLines, no new Full Court date had yet been allocated for the hearing of the appeal.

Immediately prior to the hearing of the interlocutory application in July/August 2023, the respondent delivered a notice of amendment to her notice of motion, aimed at correcting certain wording (including deletion of an incorrect reference to “leave to appeal”) and expanding the relief to include that the appeal be dismissed “and/or lapsed”. The appellant objected to the amendment and also invoked Rule 30A in respect of alleged irregularities.

The respondent also sought leave to file a supplementary (further) affidavit dealing with subsequent developments, particularly the Full Court order and alleged non-compliance with it. The appellant opposed this by notice and again pursued a Rule 30A route rather than filing a supplementary answering affidavit.

3. Legal Issues

The court was required to determine, as a matter of procedural law and jurisdiction, whether it (as a single-judge motion court) could competently decide the respondent’s application in its amended form, which sought substantive consequences for the appeal, namely dismissal and/or a declaration that the appeal had lapsed, together with the appellant’s counter-application for condonation/reinstatement.

The central legal questions included whether a single judge has jurisdiction to dismiss a Full Court appeal, and in what circumstances a single judge may declare an appeal (or the application for an appeal hearing date) to have lapsed under Rule 49(6) and Rule 49(7). This required interpretation and application of the Uniform Rules to a procedural posture in which an appeal had already been enrolled before the Full Court, removed from the roll, and made subject to a record-correction order.

The court also had to decide two interlocutory procedural issues: whether the respondent’s proposed amendment should be allowed under Rule 28, and whether leave should be granted to the respondent to file a further affidavit. These issues involved the application of procedural discretion and assessment of prejudice.

Finally, the court had to determine the appropriate order as to costs, including whether costs should be awarded at that stage or reserved for determination with the appeal and related applications.

4. Court’s Reasoning

On the amendment, the court treated the appellant’s objections as misconceived in light of Rule 28(10), which permits amendments at any time before judgment, subject to the court’s consideration of prejudice. The court reasoned that the proposed changes were either immaterial (the correction of the incorrect phrase “leave to appeal” and the adjustment to the descriptive basis of dismissal), or not genuinely surprising to the appellant because the allegation of lapsing had already been raised in the respondent’s replying affidavit. The decisive factor was the absence of demonstrated prejudice to the appellant. The court also rejected technical objections premised on the absence of a service address in the amendment notice and the lack of a 10-day objection period, holding that these aspects could be condoned where the circumstances did not support real prejudice.

On the filing of a further affidavit, the court emphasised the wide discretion courts possess to permit additional affidavits where subsequent events arise that may materially affect adjudication. The Full Court order directing correction of the record within 30 days was treated as a material subsequent event. The court considered that the appellant’s tactical choice to invoke Rule 30A, rather than to answer the new allegations by way of a supplementary affidavit supported by condonation where necessary, did not establish prejudice. Accordingly, the further affidavit was allowed.

The pivotal reasoning concerned jurisdiction and the proper forum for deciding whether the appeal should be dismissed, declared lapsed, and/or reinstated. The court held that it could not dismiss a Full Court appeal, because dismissal would fall within the exclusive competence of the appeal court seized with the appeal. It drew a distinction between lapsing under Rule 49(6)(a) (failure to apply for a hearing date within 60 days after noting an appeal), where the appeal is deemed to have lapsed and reinstatement is contemplated by Rule 49(6)(b) to “the court to which the appeal is made”, and lapsing mechanisms under Rule 49(7) relating to failures concerning filing/delivering the appeal record after applying for a hearing date.

The court considered authority indicating that a single judge may, in an appropriate case, declare an appeal to have lapsed in the context of Rule 49(7), relying on Genesis One Lighting (Pty) Limited v Jamieson and Others [2021] ZAGPJHC 862 (following Nawa and Others v Marakala and Another 2008 (5) SA 275 (BH)). However, it reasoned that Rule 49(7)(d) is directed at a specific factual scenario: where a party has applied for a hearing date and then neglects or fails to file or deliver copies of the record within 40 days after the registrar accepted the application for a date. The court viewed that scenario as materially different from the present case, where a hearing date had already been allocated, the appeal had already appeared before the Full Court, and the Full Court removed it from the roll with a specific order for correction of the record within 30 days.

In analysing the case’s procedural posture, the court accepted that the registrar must have been satisfied of completeness when allocating the original Full Court date, but the Full Court itself was not satisfied with the state of the record. The court treated the Full Court order as creating an “implied” procedural framework: the Full Court would hear the respondent’s dismissal/lapsing application and the appellant’s reinstatement/condonation application once the record was corrected and the matter could be re-enrolled. The court regarded disputes about compliance with the Full Court’s record-correction order as most appropriately resolved by the appeal court, particularly because reinstatement would entail a consideration of matters such as prospects of success, something the appeal court is best positioned to assess.

The court therefore concluded that, while Rule 49(7) may in some circumstances confer jurisdiction on a single judge to declare lapsing, it did not cover the present situation, where the Full Court had already intervened with a roll-removal and record-correction order. As a result, the court held that the appeal and the interlocutory applications should be dealt with by the Full Court.

The court then addressed the practical difficulty that the Full Court order appeared to condition re-enrolment on correction of the record, while the appellant maintained that the record was substantively correct and the dispute concerned indexing/pagination related to CaseLines. To resolve this procedural impasse, the court expressed the view that the registrar should re-enrol the matter before the Full Court for consideration, thereby enabling the Full Court to address the appeal and all related interlocutory applications together.

On costs, the court noted non-compliance with aspects of the practice directives relating to enrolment (including reference to item 136.1 of Practice Directive 2 of 2022) and the late filing of heads, but nonetheless proceeded to hear the matter. Exercising its discretion, the court took into account that there had been long delays not attributable to the respondent and that the respondent continued to suffer prejudice from the delay, including alleged financial hardship and the appellant’s refusal to pay an undisputed portion of an accrual claim. Against that background, the court declined to make a costs order against the respondent and instead ordered that costs be costs in the appeal, to be determined when the Full Court considers the applications.

5. Outcome and Relief

The court granted the respondent’s amendment to the notice of motion and granted leave for the respondent’s supplementary affidavit to stand.

The court did not determine the merits of whether the appeal should be dismissed, declared lapsed, or reinstated. Instead, it postponed both the application and counter-application sine die for hearing by the Full Court simultaneously with the appeal under case number A5008/21.

The court requested the registrar to allocate a Full Court date for the hearing of the appeal as soon as possible. The costs of the application and counter-application were ordered to be costs in the appeal, to be decided when the Full Court considers those applications.

Cases Cited

Genesis One Lighting (Pty) Limited v Jamieson and Others [2021] ZAGPJHC 862.

Nawa and Others v Marakala and Another 2008 (5) SA 275 (BH).

Legislation Cited

Uniform Rules of Court (South Africa).

Rules of Court Cited

Uniform Rule 28(10).

Uniform Rule 30A.

Uniform Rule 49(6)(a).

Uniform Rule 49(7)(a)–(d).

Held

The court held that the respondent’s proposed amendment should be granted because Rule 28(10) permits amendments before judgment and the appellant failed to establish prejudice, particularly where the issue of lapsing had already been raised in the affidavits.

The court held that the respondent should be granted leave to file a further affidavit because the court has a wide discretion to allow further affidavits and the Full Court’s record-correction order constituted a subsequent event materially relevant to the issues.

The court held that it lacked jurisdiction, in the circumstances of this case, to determine substantive relief amounting to dismissal of the Full Court appeal or a lapsing determination tied to the Full Court’s roll-removal and record-correction order. It concluded that the appeal and all interlocutory applications should be determined by the Full Court, and that the registrar should take steps to re-enrol the matter before the Full Court.

The court held that costs should stand over as costs in the appeal when the Full Court considers the applications, taking into account the respondent’s continuing prejudice from delays not of her making.

LEGAL PRINCIPLES

A court may allow an amendment at any time before judgment under Uniform Rule 28(10), and the decisive consideration is whether the opposing party has demonstrated prejudice that cannot be cured by appropriate procedural remedies.

A court has a wide discretion to permit the filing of further affidavits, particularly where subsequent events arise after the exchange of founding and answering papers and those events may materially affect adjudication.

A single judge may not dismiss a Full Court appeal; dismissal lies within the competence of the appeal court seized with the appeal. While Uniform Rule 49(7)(d) may empower a court to declare an appeal-related application to have lapsed in the specific scenario contemplated by that rule, that power is confined to circumstances falling within the rule’s scope and does not necessarily extend to cases where a Full Court has already removed an appeal from the roll and issued a record-correction order.

Where procedural questions of lapsing and reinstatement intersect with the appeal court’s management of the appeal (including compliance with a Full Court order and considerations such as prospects of success relevant to reinstatement), those issues are appropriately determined by the appeal court hearing the appeal.

Costs remain a matter of judicial discretion and may be reserved as costs in the appeal where interlocutory issues are intertwined with the appeal’s continuation and where fairness considerations point to reserving costs for the appeal court’s determination.

M.D.M v L.B.M (A5008/2021) [2023] ZAGPJHC 960 (25 August 2023)