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2023
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[2023] ZAFSHC 332
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Letsoenyo v Moorcroft - Appeal (A8/2023) [2023] ZAFSHC 332 (18 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
case no
:
A8/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO
MAGISTRATES: YES/NO
In the appeal of:
TEBOHO
ABRAM LETSOENYO
Appellant
and
HENRY
ABRAM MOORCROFT
Respondent
CORAM:
MOLITSOANE, J et
VAN RHYN, J
HEARD
ON:
24 JULY 2023
JUDGMENT
BY:
MOLITSOANE; J
The judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released SAFLII
on 18 AUGUST 2023. The
date and time for hand-down is deemed to be 18 AUGUST 2023 at
12h30.
[1]
The Appellant
launched an appeal against the whole judgment and order granted by
the Honourable Magistrate O.R. Majosi on 18 OCTOBER
2022. The appeal
has lapsed and the Appellant seeks an order for condonation and
reinstatement of the appeal. The application is
opposed.
[2]
The Plaintiff and defendant are high-ranking police officers in the
South African
Police Service. The Respondent was at the time of the
institution of the claim serving under the command of the plaintiff.
[3]
During 2019 the defendant laid criminal charges of
crimen injuria
,
defamation, and intimidation against the plaintiff. Shortly
thereafter the plaintiff was notified by the investigating officer
of
the charges against him through the unit’s work email. Various
other staff members have access to the email address used.
The
National Prosecuting Authority declined to prosecute. The defendant
thereafter lodged a further complaint with the Human Rights
Commission.
[4]
The essence of the gripe of the plaintiff is that the defendant
published defamatory
false statements against him alleging that the
plaintiff racially discriminated against him and further that the
SAPS protected
him and failed to discipline him. He was of the view
that his reputation was tarnished and that the allegations put him in
bad
light against his seniors and subordinates.
[5]
On the other hand, the defendant alleges that the plaintiff had
said to him,
“
it
is true that what that news clip guy from the DA said in the
news clip today about you people with leadership
[1]
.”
When the utterances were made he had no clue what the plaintiff
meant. Later in the evening he conducted a research and
found an
article about the DA and coloureds not being competent to be in
leadership positions. This finding triggered the
chain of
events that led to these proceedings. Because of the finding I later
make, it is unnecessary to traverse the whole path
leading to the
alleged cause of action, in this case, save to deal with the events
regarding the condonation application and its
reinstatement.
[6]
The chronology of events as set out in the application for
condonation and reinstatement
indicates the following:
a)
That the
judgment was delivered by the Court a quo on 18 October 2022;
b)
That the
Appellant noted his appeal within 20 days as prescribed by the Rules
of the Magistrate Court;
c)
That the
Appellant applied to the Registrar in writing for the allocation of a
hearing date within 40 days as required by Rule 50(4)
of the Uniform
Rules;
d)
That the
Appellant failed/omitted to file the record with the application for
allocation of a hearing date as required by Uniform
Rule 50(7);
e)
That on 17
January 2023, the Appellant filed part of the record of the
proceedings of the Court a quo.
[7]
The Appellant concedes that he failed to comply with Rule 50(4). His
explanation for
non-compliance is that his attorneys could not find
the digital recording from the Court in order to hand over the same
to the
transcribers. That on 13 January 2023 contact was made with
the transcribers who in turn, on the same day, provided the
Appellant’s
attorneys with a form to complete. The said form
was completed and dispatched back to the transcribers on 20 January
2023.
[8]
The Appellant’s attorneys followed up on the request for the
transcript, on
27 January 2023. It is also the case for the Appellant
that on 3 February 2023, his attorneys followed up with the court
officials
as to when the record would be made available to the
transcribers. There was further correspondence and the record was
finally
served on 27 March 2023 on the Respondent’s attorneys.
The record filed did not include the proceedings of 11 August 2022
and was therefore incomplete. The submission of the Appellant is that
there is nothing he can do to make the rest of the record
available
as he is not the custodian thereof and that the court was.
[9]
In opposition to the application, the Respondent avers that it was
unclear what steps
at all were undertaken up until 13 January 2023 to
obtain the transcribed record save to state that there was engagement
with the
court officials to obtain the record. In essence, the
contention by the Appellant is that he failed to provide a record
because
of the glitches caused in the procurement of the record from
the Court a quo.
[10]
It
is well settled in our law that the applicant who seeks condonation
is required to give a full and candid explanation for non-compliance
with the rules. The remarks of the Court in
Melane
v Santam Insurance Co Ltd
[2]
,
regarding the test for granting condonation are relevant:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent’s interests in finality must not
be overlooked.”
[11]
In
Grootboom
v National Prosecuting Authority an Another
[3]
the
court said the following:
“
A
party seeking condonation must make out a case entitling it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the no-compliance
with the rule or court’s directions. Of great importance,
the
explanation must be reasonable enough to excuse the default.”
[12]
It is undisputed that the Appellant only applied for the assignment
of the date of hearing on
9 January 2023. This was done contrary to
Rule 50(4) read with Rule 50(7) which requires that the record of the
proceedings be
filed with the said request. On the said date, the
Appellant was advised in writing by the attorneys for the Respondents
that the
transcribed record was still outstanding as the same had to
be filed with the Rule 50 (4) Notice as per Rule 50(7)(a).
[13]
The explanation for the non-compliance is in my view inadequate.
There is no explanation as to
what transpired from the date of
delivery of the judgment until 13 January 2023, notably, after the
attorneys for the Respondent
made reference to the missing
transcribed record. Except for vague allegations that there was
engagement with the officials at
the court there is nothing to
substantiate the allegations. For the requirement that the applicant
in the condonation application
must explain the full reasons for the
delay, the following remarks in
Uitenhage
Transitional Local Council v SA Revenue Service
[4]
are
apposite:
“
A
full detailed and accurate account of the causes of delay and their
affects 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
. (my
emphasis)
[14]
The Appellant made no attempt whatsoever to explain the period
between November 2022 and January
2023. What appears to be an
explanation is what he says there was engagement with the Court
personnel. He gives no explanation
with whom or when he interacted
with the said personnel. The Appellant is being untruthful when he
says he, inter alia, could not
file the record on 9 January 2023
because of the
dies non
, as according to his version, he only
managed to obtain the record on 24 March 2023, some two months
later.
[15]
The Appellant also filed an incomplete record. He puts the blame on
the doorstep of the personnel
of the Court a quo. It is in my view
common knowledge, at least among legal representatives, that where
the record is incomplete,
the next course to follow is to approach
the presiding officer for the reconstruction of the record. No
allegations have been made
as to the failure to embark on this
procedure.
[16]
In my view, there are no prospects of success that can tilt the scale
towards granting condonation
and reinstatement of the appeal. The
claim of the plaintiff is one of defamation, alternatively, violation
of dignity. The
evidence reveals that the Respondent laid
complaints with the South African Police as well as with the Human
Rights Commission.
The Appellant conceded in cross-examination that
the Appellant was entitled to lay those complaints in order to
protect his rights
and that there was nothing wrong in so doing. The
Court a quo, in my view, correctly found that these concessions by
the Plaintiff
were fatal to his case.
[17]
The Court a quo also correctly found that the publication of the
summary of the alleged offence
was not made by the Respondent. The
evidence reveals that the possible inference is that, dissemination
of the information regarding
the charges laid was most likely done by
the investigating officer in the normal cause of his duties. On this
point alone, there
are no prospects of success on the merits. The
application must fail. I accordingly order as follows:
ORDER
1.
The application for condonation and re-instatement of the lapsed
appeal is dismissed with costs
P.
E MOLITSOANE, J
I
agree
I.
VAN RHYN, J
On
behalf of the Appellant:
Adv.
F DLAMINI
Instructed
by:
Maoba
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
H. de la RAY
Instructed
by:
Botha
Peyper Attorneys
BLOEMFONTEIN
[1]
Page
307 line 22-24 of paginated record.
[2]
1962(4)
SA 531 (A).
[3]
2014(2)
SA68 (CC) at 76D.
[4]
2004(1)
SA 292 SCA at 297 H-J.