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[2023] ZAFSHC 416
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C.L v N.V.V (A40/2023) [2023] ZAFSHC 416 (26 October 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
CASE
NUMBER: A40/2023
In
the matter between:
C[...]
L[...]
Appellant
and
N[...]
V[...] V[...]
Respondent
CORAM:
VAN ZYL J
et
BALOYI-MERE AJ
et
HEFER AJ
JUDGMENT
BY:
BALOYI-MERE AJ
HEARD
ON:
13 OCTOBER 2023
DELIVERED
ON:
26 OCTOBER 2023
[1]
The Respondent in this matter brought an urgent
application which was first heard on the 16
th
April 2021. Part B of the urgent application was
heard on the 28
th
April
2022 where the parties were given an opportunity to file
supplementary heads of argument on the 01
st
June 2022 and 03
rd
June 2022 respectively. The matter was then
postponed to the 07
th
June 2022.
[2]
The court then gave the order after arguments and
consideration of the papers filed in the matter:
“
1.
It is declared that the parties are co-holders of parental
responsibilities and rights in respect to the minor child H[…]
V[…] V[…], a girl born on the […] F[…]
2019 and currently is three years old (hereinafter referred
to as
“H[...]”);
2. The Applicant shall
have care and primary residency of H[...] as contemplated in section
18(2)(a) read with sections 1, 18(3),
and 21 of the Children’s
Act 38 of 2005 (hereinafter referred to as “the Children’s
Act”);
3. The
Respondent shall have contact rights in respect of H[...] every
alternative weekends from Friday 14h00 till Sunday
18h00.
4. The
Applicant is ordered to contribute half of the traveling expenses of
the Respondent.
5. The parties
shall equally share in the long school holidays and the short school
holidays are to alternate between the
parties.
6. The parties
are to exercise three hours contact on the birthday of the minor
child and that of the parties should such
a day not coincide with the
normal contact weekend or holiday.
7. Contact on
Father’s Day/ Mother’s Day for three hours, if such a day
does not coincide with the normal contact
weekend or school holiday.
8. Regular
telephonic/video call contact on a daily basis between the hours
16h00 till 19h00.
9. The parties
are ordered to approach a family mediator if any disputes arise that
involves the minor child, before approaching
court.
10. The parties are
ordered to attend parenting skills training, co-parenting, and
communication skills training.
11. Each party to pay
their own costs.”
[3]
This order was granted by her Ladyship Honourable
Justice Chesiwe on the 21
st
October 2022.
[4]
The parties to this appeal have brought
applications and counter applications against one another and in this
judgment I will refer
to Ms. C[...] L[...] as the “Appellant”
and Mr. N[...] V[...] V[...] as the “Respondent”. This
appeal is
brought to this court with leave of the
court
a quo
.
[5]
The
history and the background of this matter are clearly captured in the
court
a quo’s
judgment
[1]
and
it is not necessary to repeat the background in this judgment.
[6]
The Appellant was granted leave to appeal both the
judgment and the order of Madam Justice Chesiwe on the 16
th
February 2023. The Appellant served her notice of
appeal on the 16
th
March
2023. On the 14
th
June
2023 the Appellant delivered the appeal record. The application for
the date of the hearing of the appeal was served by the
Appellant on
the 23
rd
June
2023 on the Respondent.
[7]
After the filing of the record by the Appellant,
the Respondent raised the following non-compliance issues against the
conduct by
the Appellant in prosecuting the appeal, that the
Appellant did not, before the filing of the appeal record enter into
good and
sufficient security for Applicant’s cost of appeal as
provided for in Rule 49(13)(a).
[8]
Further that the Appellant’s application to
the Registrar of this court for a trial date was in terms of Rule
49(6)(a) out
of time and that the Appellant failed to furnish her
full residential address and the names and addresses of every other
party
to the Appeal.
[9]
The Respondent further alleged that the Appellant
failed to file a power of attorney as provided for in rule 7(2) and
further failed
to file a substantive condonation application for all
the above-mentioned non-compliances.
[10]
As
a result, the Respondent filed a Rule 30 application
[2]
,
the Appellant opposed the Rule 30 application and filed an answering
affidavit which was accompanied by a “counter conditional
condonation application”.
[11]
The aforesaid interlocutory application was
enrolled to be heard simultaneously with the appeal. As a result, I
now deal with the
Rule 30 application.
[12]
The Appellant’s general response to the
non-compliance or the Rule 30 application was that there was no legal
obligation on
the Appellant to comply with those rules as provided
for in Rule 4 and its subsections. For completeness's sake I will
quote hereunder
Rule 49 and its provisions:
“
49
Civil Appeals for the High Court
(1)(a) When leave to
appeal is required, it may on a statement of the grounds therefor be
requested at the time of the judgment
or order.
(b)
When leave to appeal is required and it has not been
requested at the time of the judgment or order, application for such
leave
shall be made and the grounds therefor shall be furnished
within fifteen days after the date of the order appealed against:
Provided
that when the reasons or the full reasons for the court's
order are given on a later date than the date of the order, such
application
may be made within fifteen days after such later date:
Provided further that the court may, upon good cause shown, extend
the aforementioned
periods of fifteen days.
(c)
When in
giving an order the court declares that the reasons for the order
will be furnished to any of the parties on application,
such
application shall be delivered within ten days after the date of the
order.
(d) The application
mentioned in paragraph (b) above shall be set down on a date arranged
by the registrar who shall give written
notice thereof to the
parties.
(e) Such application
shall be heard by the judge who presided at the trial or, if he is
not available, by another judge of the division
of which the said
judge, when he so presided, was a member.
(2) If leave to appeal
to the full court is granted the notice of appeal shall be delivered
to all the parties within twenty days
after the date upon which leave
was granted or within such longer period as may upon good cause shown
be permitted.
(3) The notice of
appeal shall state whether the whole or part only of the judgment or
order is appealed against and if only part
of such judgment or order
is appealed against, it shall state which part and shall further
specify the finding of fact and/or ruling
of law appealed against and
the grounds upon which the appeal is founded.
(4) A notice of
cross-appeal shall be delivered within ten days after delivery of the
notice of appeal or within such longer period
as may upon good cause
shown be permitted and the provisions of these Rules with regard to
appeals shall mutatis mutandis apply
to cross-appeals.
(5) In the case of an
appeal against the judgment or order of the court of the
Witwatersrand Local Division, the Judge President
of the Transvaal
Provincial Division shall determine whether the appeal should be
heard by the full court of the said local division.
As soon as
possible after receipt of the notice of appeal or cross-appeal, if
any, the registrar of the local division shall ascertain
from the
Judge President his direction in the particular case. If the Judge
President has directed that the appeal be heard by
the full court of
the Witwatersrand Local Division, the said registrar shall
immediately inform the parties of the direction. If
not so directed
by the Judge President, the said registrar shall inform the registrar
of the provincial division as well as the
parties accordingly.
(6) (a) Within sixty
days after delivery of a notice of appeal, an appellant shall make
written application to the registrar of
the division where the appeal
is to be heard for a date for the hearing of such appeal and shall at
the same time furnish him with
his
full residential address and
the name and address of every other party to the appeal
and if
the appellant fails to do so a respondent may within ten days after
the expiry of the said period of sixty days, as in the
case of the
appellant, apply for the set down of the appeal or cross-appeal which
he may have noted. If no such application is
made by either party the
appeal and cross-appeal shall be deemed to have lapsed: Provided that
a respondent shall have the right
to apply for an order for his
wasted costs.
(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.
(7) (a) At the same
time as the application for a date for the hearing of an appeal in
terms of subrule (6)(a) of this rule the
appellant shall file with
the registrar three copies of the record on appeal and shall furnish
two copies to the respondent. The
registrar shall further be provided
with a complete index and copies of all papers, documents and
exhibits in the case, except
formal and immaterial documents:
Provided that such omissions shall be referred to in the said index.
If the necessary copies of
the record are not ready at that stage,
the registrar may accept an application for a date of hearing without
the necessary copies
if-
(i) The application is
accompanied by a written agreement between the parties that the
copies of the record may be handed in late;
or
(ii) failing such
agreement, the appellant delivers an application together with an
affidavit in which the reasons for his omission
to hand in the copies
of the record in time are set out and in which is indicated that an
application for condonation of the omission
will be made at the
hearing of the appeal.
(b) The two copies of
the record to be served on the respondent shall be served at the same
time as the filing of the aforementioned
three copies with the
registrar.
(c) After delivery of
the copies of the record, the registrar of the court that is to hear
the appeal or cross-appeal shall assign
a date for the hearing of the
appeal or for the application for condonation and appeal, as the case
may be, and shall set the appeal
down for hearing on the said date
and shall give the parties at least twenty days' notice in writing of
the date so assigned.
(d) If the party who
applied for a date for the hearing of the appeal neglects or fails to
file or deliver the said copies of the
record within 40 days after
the acceptance by the registrar of the application for a date of
hearing in terms of subrule (7) (a)
the other party may approach the
court for an order that the application has lapsed.
(8) (a) Copies
referred to in subrule (7) shall be clearly typed on A.4 standard
paper in double spacing, paginated and bound and
in addition every
tenth line on every page shall be numbered.
(b) The left side of
each page shall be provided with a margin of at least 35 mm that
shall be left clear, except in the case of
exhibits that are
duplicated by photoprinting, where it is impossible to obtain a
margin with the said dimensions. Where the margin
of the said
exhibits is so small that parts of the documents will be obscured by
binding, such documents shall be mounted on sheets
of A4 paper and
folded back to ensure that the prescribed margin is provided.
(9) By consent of the
parties, exhibits and annexures having no bearing on the point at
issue in the appeal and immaterial portions
of lengthy documents may
be omitted. Such consent, setting out what documents or parts thereof
have been omitted, shall be signed
by the parties and shall be
included in the record on appeal. The court hearing the appeal may
order that the whole of the record
be placed before it.
(10) When the decision
of an appeal turns exclusively on a point of law, the parties may
agree to submit such appeal to the court
in the form of a special
case, in which event copies shall be submitted of only such portions
of the record as may be necessary
for a proper decision of the
appeal: Provided that the court hearing the appeal may require that
the whole of the record of the
case be placed before it.
(11) Where an appeal
has been noted or an application for leave to appeal against or to
rescind, correct, review or vary an order
of a court has been made,
the operation and execution of the order in question shall be
suspended, pending the decision of such
appeal or application, unless
the court which gave such order, on the application of a party,
otherwise directs.
(12) If the order
referred to in subrule (11) is carried into execution by order of the
court the party requesting such execution
shall, unless the court
otherwise orders, before such execution enter into such security as
the parties may agree or the registrar
may decide for the restitution
of any sum obtained upon such execution. The registrar's decision
shall be final.
(13) (a) Unless the
respondent waives his or her right to security or the court in
granting leave to appeal or subsequently on application
to it, has
released the appellant wholly or partially from that obligation, the
appellant shall, before lodging copies of the record
on appeal with
the registrar, enter into good and sufficient security for the
respondent's costs of appeal.
(b) In the event of
failure by the parties to agree on the amount of security, the
registrar shall fix the amount and the appellant
shall enter into
security in the amount so fixed or such percentage thereof as the
court has determined, as the case may be.
(14) The provisions of
subrules (12) and (13) shall not be applicable to the Government of
the Republic of South Africa or any provincial
administration.
(15) Not later than
fifteen days before the appeal is heard the appellant shall deliver a
concise and succinct statement of the
main points (without
elaboration) which he intends to argue on appeal, as well as a list
of the authorities to be tendered in support
of each point, and not
later than ten days before the appeal is heard the respondent shall
deliver a similar statement. Three additional
copies shall in each
case be filed with the registrar.
(16) ……
(17) …..
(18) …….”
[13]
I now turn to deal with the Appellant’s
response to the various issues raised by the Respondent in the Rule
30 application
and dealt with in the condonation application.
Late
Filing of the Application of the Hearing Date
[3]
[14]
The
application for the trial date was only served on the Respondent on
the 23
rd
June
2023
[4]
.
In argument, counsel for the Appellant submitted that the notice was
a mere five days late and the fact that the Registrar accepted
her
application meant that there was substantial compliance with the
rule. Thus the Appellant did not file any condonation application
for
the late filing of the application for the hearing date.
The
Power of Attorney
[15]
The Appellant did not file a power of attorney in
line with rule 7(2). The submission made by the Appellant is that
rule 7(2) is
superfluous and its purpose is simply to avoid an
instance where a litigant later denies having instructed an attorney
to act on
his/her behalf.
[16]
It was further submitted that the rule is
inconsistent with the
Superior Courts Act 10 of 2013
and militates
against the Constitution of the Republic of South Africa, 1996.
[17]
The
Appellant also indicated that there was already a power of attorney
authorizing the attorney to represent the Appellant in the
record
[5]
.
This turned out to be the authority authorizing the Appellant’s
attorney to initiate an urgent application and had nothing
to do with
the leave proceedings.
[18]
The
Appellant further referred the court to the power of attorney filed
in July 2023
[6]
which
turned out to be the authority for the legal representation to
represent the Appellant in the application for leave to appeal.
The
correct and relevant power of attorney was only attached to the
Appellant’s supplementary heads of argument and dated
the 05
th
October
2023. In argument, counsel for the Appellant correctly abandoned the
argument that rule 7(2) is superfluous and militates
against the
Constitution of the Republic of South Africa.
The
Non-filing of the Appellant’s Residential Addresses and the
Residential
Addresses of the Other Parties that Are Involved in the
Appeal
[19]
The
Appellant submitted in reply to the non-compliance raised by the
Respondent, that the addresses of the parties’ legal
representatives as they appear on the pleadings are sufficient to
satisfy Rule 49(6). The appellant further relies on CVD05
[7]
which
still lists the legal representatives’ addresses and not the
litigants’ addresses. This issue highlighted a
misinterpretation
rather than non-compliance with the rules. I will
come back to this point later in this judgment.
Security
for Costs
[20]
In response to an issue raised by the Respondent
that the Appellant failed to put up a security for costs, the
Appellant responded
that she does not have any legal obligation to
furnish security for the cost of appeal in terms of any statute or
common law. The
Appellant further argued that the provisions of Rule
49(13) of the Uniform Rules of Court are unconstitutional,
ultra
vires
(invalid) and that it does not
constitute any legal obligation on the Appellant to provide security
for costs on appeal.
[21]
The Appellant relied heavily or solely on the
Allem Inc v Baard in re: Baard v
Allem Inc (A5005/2021:2016/44725) [2021]ZAGPJHC 677;
[2022] 1 All SA
680
(GJ);
2022 (3) SA 207
(GJ) (12 August 2021)
judgment and quoted almost fifty paragraphs from
the said judgment.
[22]
The court in the Allem v Baard judgment was called
upon to deal with whether the provisions of Rule 49(13) were
ultra
vires
the Constitution or not. The
court, per Madam Acting Justice Engelbrecht, considered the several
judgments from the different High
Courts on the provisions and
application of Rule 49(13) where for instance Justice Froneman as he
then was in the Eastern Cape
Division of the High Court in the matter
of
First Rand v Van Der Merwe
held in obiter that “
Rule
49(13) may well be ultra vires and thus unconstitutional
”
.
This issue was never taken forward as the parties to that matter
later settled and the issue of the constitutionality or otherwise
of
Rule 49(13) was never explored further.
[23]
Prior
to the 1999 amendment of this rule, Rule 49(13)(a) was considered in
a full bench appeal in Shepherd v O’Neill
[8]
and
the court there held that the conflicting rights of the litigants can
be adequately safeguarded where the court is vested with
the power to
determine, and exercise its discretion whether a particular appellant
should be compelled to put up security and in
what amount. In that
particular judgment, Rule 49(13) to the extent that it did not embody
the power that the court should have
a discretion to determine
whether a particular appellant should put up security and in what
amount was held to be in conflict with
the Constitution and to that
extent invalid. As a consequence of that ruling, the Rule 49(13) was
then amended.
[24]
Subsequent
to the amendment in 1999 of Rule 49(13), the rule was considered by
the courts in
Strouthos
v Shear
[9]
per
Justice Daniels where the court explained the rule as follows:
“
Here
it is provided that the court in granting leave to appeal or
“subsequently on application to it …” (as opposed
to the court to which the appeal is made, or the court hearing the
appeal) is the court designated to order the release of the
appellant
from his/her obligation to lodge security. Since leave to appeal was
granted by the Supreme Court of Appeal, or properly
put, the
President of the Court, it is only that Court that can conceivably
release the respondent from his obligation to provide
security, and
the court hearing the appeal accordingly does not have jurisdiction
to do so. This much follows from a proper reading
of the sub-rule.
Should the appellant be so inclined he could apply to that court for
such relief. In considering such an application,
the court has a wide
discretion which will be judicially exercised. However, until such
time and such an order are obtained, the
respondent is obliged to
provide security, and this must be done before lodging copies of the
record on appeal with the Registrar
in terms of sub-rule 13(a).
The copies of the
record were lodged on 01 February 2022. Since security was then not
lodged, the lodging of the copies of the record
on appeal constitutes
an irregular step within the meaning of Rule 30, and may accordingly
be set aside upon application. Should
it be set aside the provisions
of rule 7(d) which provides that:
“
(i)f
the party who applied for a date of the hearing of the appeal
neglects or fails to file or deliver the said copies of the record
within forty days after the acceptance by the Registrar of the
application for a date of hearing in terms of sub-rule 7(a) the
other
party may approach the court for an order that the application has
lapsed” apply. Should security be furnished, the
record cannot
be lodged, and sub-rule 7(c) cannot be given effect to.”
[25]
In
December 2017 a full bench of the Gauteng Division, Pretoria issued a
judgment in the matter of Erasmus v Absa Bank Ltd
[10]
where
the court considered the question of whether condonation for
non-compliance with Rule 49(13)(a) was to be granted. The court
in
this matter was not called upon and did not engage with the meaning
and constitutional validity of Rule 49(13). The court found
that the
Appellant in that matter must apply for condonation for the late
filing of security and declined the Applicant’s
argument that
the court ought to dispense with the requirement for security on the
basis of Rule 49(13) and the court held that
only the court granting
leave to appeal can release the Appellant from the obligation to
furnish security.
Whether
Rule 49(13) is Constitutionally Invalid and/or Ultra Vires
[26]
In
trying to answer the question of whether Rule 49(13) is
unconstitutional, this court has to consider section 34 and the
access
to court. Section 34 of the Constitution provides that
everyone has the right to have a dispute that can be resolved by the
application
of law decided by a court or tribunal in a fair public
hearing. Justice Mokgoro in
Chief
Lesapo v North West Agricultural
Bank
and Another
[11]
held
that the right to access to court is of such importance that there is
no basis to suggest that the right to access court must
be considered
simply as access to a court of first instance. In accordance with
section 36 of the Constitution, that right may
be limited only in
terms of law of general application to the extent that the limitation
is reasonable and justiciable in an open
and democratic society based
on dignity, equality and freedom, taking into account relevant
factors such as the nature of the right,
the importance of the
purpose of the limitation, the nature and extent of the limitation,
the relation between the limitation and
its purpose and less
restrictive means to achieve the purpose.
[27]
Section 34 must also be read with section 171 of
the Constitution, which provides that all courts function in terms of
national
legislation and their rules and procedures must be provided
for in terms of that legislation. The national legislation envisaged
in section 171 for present purposes must be the
Superior Courts Act
and
the Rules Board Act and there is no question that the Uniform
Rules, of which Rule 49(13) form part, are those contemplated in
section 171.
[28]
The
Constitutional Court in
Giddey
NO v JC Barnard and Partners
[12]
per
Justice O’Regan held that:
“
For
courts to function fairly they must have rules that regulate their
proceedings. Those rules will often require parties to take
certain
steps on paying off being prevented from proceeding with a claim or
defence. A common example is the rule regulating the
notice of bar in
terms of which defendants may be called upon to lodge their plea
within a certain time failing which they will
lose the right to raise
they defence. Many of the rules of court require compliance with
fixed time limits, and the failure to
observe those time limits may
result, in the absence of
good
cause shown
[13]
,
in a plaintiff or defendant being prevented from pursuing their claim
or defence. Of course, all these rules must be compliant
with the
Constitution. To the extent that they do not constitute a limitation
on a right of access to court, that limitation must
be justifiable in
terms of section 36 of the Constitution. If the limitation caused by
the rule is justifiable, then as long as
the rules are properly
applied, there can be no cause for constitutional complaint.”
[29]
In
the same vein the Constitutional Court held in
Domehl
v Minister of Justice and Others
[14]
that
not every procedural requirement constitutes an infringement of a
right to access to court.
[30]
A
limitation analysis suggests that Rule 49(13) may be considered a
justifiable limitation in that the rule exists in accordance
with the
provisions of national legislation especially
section 51
of the
Superior Courts Act which
provides for the retention of rules in
place before the statute was promulgated and
section 6(1)
of the
Rules Board Act which confers upon the rules board the power to make
and amend rules. On the principle of subsidiarity,
it is the
provisions of these statutes that must be applied to assert the
access to court right, and not
section 34
directly
[15]
.
Rule 49
constitutes a law of general application within the meaning
of section 36 of the Constitution and the bar is not absolute as an
appellant is able to escape the requirement of providing security
either by agreement within the parties or approaching the court.
Accordingly, this limitation is flexible.
[31]
This court finds that the argument that, Rule
49(13) is inconsistent with the Constitution and that it is
ultra
vires,
is not sustainable under the
circumstances. Rule 49(13)(a) post-amendment is not inflexible as it
provides the court with the power
to release an appellant from the
obligation to provide security and further affords an appellant an
opportunity to approach the
court that granted leave to appeal for an
order dispensing with the requirement to provide security.
[32]
In
Strouthos v Shear
supra
the court
further held as follows:
“
As
explained earlier it is the respondent’s case that he is
entitled to proceed and that he may or may not apply for condonation
for his failure to lodge security, and if he does so apply and the
application is refused, the applicant will then be entitled
to move
for the appeal to be struck from the roll. It is argued that
notwithstanding the fact that he has not been released from
that
obligation, the applicant is not entitled to demand security nor is
he obliged to lodge security. This approach renders the
rule a
nullity, and as said earlier, the respondent is clearly wrong. It is
for the respondent to apply for and obtain the release
from his
obligation to provide security.
The applicant applies
for an order directing the respondent to furnish security. Strictly
speaking, such an order is not required,
since the respondent is
obliged in terms of the rule to provide security. The rule does not
provide for an order in the terms prayed.”
[33]
In
Carpe
Diem Explorations (Pty) Ltd v Kasimira Trading 82 (Pty) Ltd
[16]
where
the appellant sought condonation for some of its failures and asked
the court to release it from the obligation to furnish
security,
Justice Tuchten commented as follows:
“
The
failure to file security and
to
obtain a ruling on the failure to find security before the appeal was
due to be heard is of a character different to the other
procedural
non-compliance which I have mentioned. It is the right of the
respondent on an appeal to go into an appeal secured,
at least to the
extent provided by the rules against the inability of the appellant
to pay the costs of the appeal if unsuccessful.
The failure to provide
an explanation as to why security should be dispensed with and the
failure to have the issue of security
resolved by application to
court before Kashmiri incurred expense in opposing the appeal are in
my view sufficient by themselves
to justify the dismissal of the
application to dispense with security.”
[34]
In
TR
Eagle Air (Pty) Ltd RW Thompson
[17]
the
court was faced with a submission by the appellant that the
respondent ought to have engaged the Rule 30 procedure if it
considered
that the failure to put up security was an irregular step
and the full court in that matter held as follows at paragraph 18:
“
Rule
49(13) is
peremptory
.
The rule does not place any responsibility on the respondent. The
rule obliges the appellant to give security. The rule does not
give a
court granting leave to appeal the discretion to absolve an appellant
from giving security when the record is filed with
the Registrar. The
rule envisages that the respondent shall be satisfied that sufficient
security is given that his costs will
be paid in the event of the
appeal not succeeding. The rule entitles the respondent to waive his
right to such security. The rule
envisages an instance where the
court granting leave to appeal may release the appellant wholly or
partly from giving security
on application to it. The latter may
occur where the respondent has not waived his right and, this will
oblige the appellant to
place facts to the satisfaction of the court
why he/she should be released wholly or partially from giving
security where filing
the record on appeal.
The
court further placed reliance on the judgments in Strouthos and
Boland Konstruksie Maatskappy (EDMS) BPK v Petlen Properties
(EDMS)
BPK
[18]
and
concluded as follows:
“
In
this matter the second appellant is a practicing attorney who is
expected to have known better of the importance to provide security
for costs in the appeal and, the possibility of prejudice to the
respondent should no security be given. When the heads of argument
was served there was knowledge on his part that he had not complied
and he was forewarned. This in my view should have triggered
prompt
attention to either negotiate security and apply for condonation, or
alternatively to have the matter removed, to tender
wasted costs in
order to attempt to compliance and condonation. I am of the view that
it is proper to strike the appeal off the
roll.”
[35]
In the circumstances of this present matter, the
appellant is represented by a legal representative who should have
known better
of the importance to provide security or to apply to be
released from providing security costs.
[36]
The court in
Allem
Inc v Baard
supra
did
not come to the conclusion on the constitutional non-compliance of
Rule 49(13) as raised by the Appellant.
[37]
The
Appellant argued largely that Rule 49(13) is unconstitutional and
militates against the provisions of the Constitution. However,
the
court was not called upon to deal with the unconstitutionality of
Rule 49(13) as firstly, the Appellant just concluded that
Rule 49(13)
have been declared unconstitutional although there was never a
process to declare that rule unconstitutional and failed
to
appreciate the Oudekraal principle
[19]
which
held as follows:
“…
If the
validity of consequent acts is dependent on no more than the factual
existence of the initial act then the consequent act
will have legal
effect for so long as the initial act is not set aside by a
competent court.”
[38]
This simply means that a litigant cannot just
ignore the law or a rule just because they feel that it is
unconstitutional and
ultra vires
while it has never been set aside by a competent
court of law. That is not how the law works and the principle of
precedent is still
alive in the South African law.
[39]
The Appellant, in her condonation application, has
given reasons why the application for the hearing of the trial date
was late.
That explanation is accepted by this court.
[40]
However, the Appellant has failed to show good
cause why she failed to file a power of attorney in line with rule
7(2), to provide
her physical and the physical addresses of all the
parties that are involved in the appeal and to also furnish good and
sufficient
security in terms of Rule 49(13). The Appellant’s
failure to comply with the various provisions of Rule 49 cannot be
viewed
lightly and simply be condoned where good cause has not been
shown by the Appellant in her condonation application. The sweeping
statement that all these provisions that have not been complied with
are unconstitutional is not sufficient reason to grant condonation
especially where there has not been an effort to follow the procedure
to declare the subsections of this rule unconstitutional.
[41]
I must add at this juncture comment on the conduct
on the part of the Appellant in the proceedings in this appeal.
Starting with
the failure to adhere to the court rules in observing
the time periods stipulated for the filing of the record, the
application
for the trial date, the filing of the power of attorney,
the furnishing of the addresses of the litigants in this appeal and
the
putting up of security, all these points to either a total
disregard of the rules or a misreading of the rules. I hasten to add
that the Appellant’s behavior in this proceedings points to a
misunderstanding of the rules as the Appellant was adamant
that her
non-compliance is due to the fact that those rules she did not comply
with are unconstitutional and therefore she did
not have to comply
with. As a word of caution to practitioners, this court would like to
point out that:
“
the
rules set the parameters within which the course of litigation has to
proceed. The rules of engagement, must, therefore, be
obeyed by the
litigants. However dogmatically rigid adherence to the Uniform Rules
of Court is as distasteful as their flagrant
disregard of violation.
Dogmatically adherence just like flagrant violation defeats the
purpose for which the court rules were
made.”
[20]
[42]
This in essence means that a litigant cannot just
flagrantly disregard the rules of court but also does not mean that a
litigant
is expected to comply with the rules of court to a point
that there is no fault. There are measures put in place to assist a
litigant
who has not complied with all the rules in the form of
application for condonation and the likes. But a litigant cannot seek
condonation
without showing good cause for why the court should
condone the non-compliance with the rules. In this particular matter
the Appellant
does not show any good cause for non-compliance with
the court rules, the Appellant still persist with her submission that
the
rule is unconstitutional and only says
“
to
the extent that I am wrong in my submission that I have substantially
complied with Rule 49(6) of the Uniform Rules of Court
in this
regard, I humbly request this Honourable Court to condone my failure
to strictly comply timeously herewith.”
[43]
The Appellant’s reliance on case law where
there is an indication that the case relied upon was not properly
read and considered
shows a lack of preparation on the part of the
legal practitioner. That is a sad sight to behold in this court,
especially at the
appeal stage before a full bench. It is expected of
legal practitioners to prepare fully and carefully before
representing their
clients and the lack of preparedness of the legal
practitioners should be discouraged.
[44]
In the circumstances, the non-compliance points
raised in the Rule 30 application succeed and the “conditional
counter application”
stands to be dismissed.
[45]
The merits of the appeal cannot be adjudicated at
this stage.
[46]
With regard to the issue of costs, the appellant
is liable for the costs of the Rule 30 application, the “conditional
counter
application and the application for condonation as the
general rule is that costs follow the order.
[47]
In considering the wasted costs of the appeal,
this court is mindful of the fact that this litigation is between two
caring parents
who, in good faith, are trying to enforce what they
both believe is in the best interest of the minor child. This court
considers
it appropriate that each party pays his or her own costs.
[48]
This court is not closing the doors on the face of
the Appellant, the Appellant still has an opportunity to approach a
court and
make good on the compliance with Rule 49 in due course.
[49]
In the circumstances, I make the following order:
[50]
ORDER
1.
The Appellant’s appeal is struck from the
roll for non-compliance with the rules.
2.
The Appellant is ordered to pay the costs of the
Rule 30 application, the “conditional counter application”
and the
condonation application.
3.
Each party is to pay his or her own costs in
respect of the wasted costs of the appeal.
E.M.
BALOYI-MERE, AJ
I
concur.
C.
VAN ZYL, J
I
concur.
J.J.F.
HEFER, AJ
On
behalf of the appellant:
Ms
Christel Van Dyk
Instructed
by
Van
Dyk Attorneys
Bloemfontein
Ref:CVD/O0001
On
behalf of the respondent:
Adv
Jaco Van Rooyen
Instructed
by
Greyling
Orchard Attorneys
Bloemfontein
[1]
Record
volume 5 pages 979 – 982.
[2]
Pages
1 – 12 of the interlocutory application bundle.
[3]
Page
91 of interlocutory application bundle.
[4]
Page
145 of interlocutory application bundle.
[5]
Record
volume 4, pages 607 and 608.
[6]
Pages
86 and 87 of the interlocutory application bundle.
[7]
Pages
83 - 85 interlocutory application bundle.
[8]
2000
(2) SA 1066
(N).
[9]
2003
(4) SA 137
(T) at paragraph 8.
[10]
(A)
982/13) [2017] ZAGPPHC 890 ( 08 December 2017)
[11]
1999
(12) BCLR 1420
(CC) at para 22.
[12]
[2006] ZACC 13
;
2007
(5) SA 525
(CC) at para 16.
[13]
My
emphasis
[14]
2000
(2) SA 987 (CC).
[15]
S
v Mlhungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at para 59.
[16]
A601/14
[2016] ZAGPPHC 1099 (14 December 2016) at paragraphs 17 and 18.
[17]
2021
JDR 0699 (GP).
[18]
1974
(4) SA 291 (C).
[19]
[2004]
(3) All SA 1
(SCA) (28 May 2004) at para 31.
[20]
L[...]
v Grobler and Another (3074/2016)
[2016] ZAFSHC 206
(15 December
2016).