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[2021] ZALMPPHC 40
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Mopani District Municipality v Rebecca and Other (HCA04/2020) [2021] ZALMPPHC 40 (28 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE
HIGH COURT
OF SOUTH
AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
No HCA04/2020
In
the matter between
:
MOPANI
DISTRICT MUNICIPALITY
APPELLANT
And
TIVA
NSHALATI REBECCA & OTHER
RESPONDENT
JUDGMENT
LEDWABA
AJ
Introduction
[1]
The appellant is aggrieved by the summary judgment granted by the
Giyani
Magistrate
'
s
Court on the 2
7t
h
July 2018. It has noted an appeal against the whole judgment and
order made by the court of first instance
.
[2]
In its notice of appeal
,
the
grounds of appeal are to the effect that the court of first instance
erred
in
finding
that:
2.1
there was a volunteer borehole operator agreement between the
parties
;
2.2
the respondent
'
s
claim falls under the claims referred to in the Rule 14 of the Rules
Regulating the Conduct of Proceedings of the Magistrates
'
Court of South Africa
(the Magistrate
'
s
Court Rules);
2.3
the respondent
is
entitled
to summary judgment without evidence in support of the allegation
that services were
rendered
by
the
respondent
to
the appellant
;
2.4
the appellant has not disclosed a bona fide defence to
the
respondent's
claim
and
2
.
6
there was an agreement
between the parties despite the respondent's failure to produce
proof
of payments allegedly made to respondent.
[3] On
the 27
th
July
2018 and in the presence of the parties
'
legal representatives
,
the court a quo delivered an
ex
tempore
and
written judgment. In terms of Rule 51(1) of the Magistrate
'
s
Court Rules
,
the
appellant served the request for the reasons for judgment on the 14
th
August 2018
.
Whilst the reasons for judgment are
dated the
31st
August
2018
,
the
notice of appeal is dated and was served on the 29t
h
November
2018.
The
appellant
filed condonation application for the
late filing of the appeal more than a year later on the
30th
March 2020
.
[4] Rule
51(3) of the Magistrates Court Rules requires an appellant to note
an
appeal within twenty days after the date of a judgment or after the
receipt of the reasons for judgment. The appellant is applying
for
the condonation of the late filing of the notice of appeal and the
record of appeal.
Condonation
[5]
In
an application for condonation
,
an
applicant is required to show sufficient cause for the court to
exercise its discret
i
on
in favour of granting the condonation appl
i
cation.
[1]
In deciding whethe
r
sufficient
cause has been shown
,
the
basic principle is that the court has a discretion
,
to
be exercised judicially upon consideration of all the facts
,
includ
i
ng
the degree of lateness in comp
l
ying
with the prescribed
ti
me
frame
,
the
explanation for the delay as well as prospects of success on
the
merits
.
[2]
[6]
Withou
t
a
reasonable and acceptable e
x
planation
for the delay
,
the
prospects of success are immaterial and without prospects of su
c
cess
,
no
matter how good the e
x
planation
for the delay
,
an
application for condonation should be refused
.
[3]
(7]
The application
for
condonation
is
not a mere formality
but
must be accompanied by acceptable explanation for the de
l
ay
.
[4]
In
Uitenhage
Transitional
Local
Council
v
South
African
Revenue
Service
2004(1) SA 292(SCA)
at
(6)
it
was said
:
"
One
w
ould
ha
v
e
hoped that the man
y
admonitions
c
o
ncerning
w
hat
is required of an applicant in
a
condona
i
ton
application would b
e
trite
knowledge
am
o
n
g
pra
c
titioners
w
ho
are entrusted
w
ith
the preparation
of appeals to
this Court:
condonation is not to be had merely
for asking
:
a
full
detailed and accurate account of the causes of delay and their
effects must be furnished so as to enable the Curt to understand
clearly
the
reasons and to assess the responsibility
:
it must be obvious that if he
non-compliance
is
time
-
related
then the
date
,
duration and the
e
x
tent
of any obstacle on which reliance is placed must be spelled out
.
"
See
also
Standard Bank of SA Ltd
;
Court v Bester NO and Others
1995(3) SA 123(A)
.
[8]
A
condonation applicant seeking condonation for non-compliance with the
set out time is required to give complete account for each
period of
delay
.
The
entire period of the delay must be fully expla
i
ned
.
[5]
[9]
The
standard for considering condonation application is the interest of
justice
.
[6]
Whether
it is in the interest of justice to grant condonation depends on the
facts and the circumstances of each case
.
[7]
[10]
The
granting
of
condonation
application
is
with
i
n
the
d
i
scretion
of
the
court
.
[8]
[11]
In
casu
,
the appellant's reason for the late
filing of the appea
l
is
that the requested reasons for judgment did not reach its attorney
'
s
off
i
ce
.
It says the delay
"
was
occasioned by inadvertent errors on the part of the judicial system
in the court
a
quo
."
It says it lodged the appeal without
the reasons
for judgement. Dealing with
prospects of success
,
the
appellant says this
is
reflected
on the grounds set out in the notice of appeal.
[12]
The respondent is opposing the condonation application
.
It submits that having
regard
to the provisions of Rule 51(9) of the
Magistrate
'
s
Court Rules
read
with
Rule 49(6) of the Uniform Rules
,
the
appeal has lapsed by the operation of law. It says that the appeal
was lodged with the aim of frustrating the execution warrant
served
on the appellant on the 31
st
October 2021
,
about
a month before the appeal was lodged. The respondent also raises
various points
in limine
.
In view of the conclusion arrived at
i
n this
judgement
,
there
is no need to consider these points
in
limine
.
[13]
In terms of rule 49(6) of the Uniform Rules
,
an appeal
is
required to be prosecuted within sixty
days after its lodgement.
[14].
The reason provided by the appellant for the delay in lodging the
appeal does not meet the requirement of sufficient or acceptable
explanation. The appellant says it was not provided with the reasons
for judgment. Having requested the reasons for judgment on
the 14
th
August 2018 and despite the fact that
same are required to be provided within fifteen days of the receipt
of the request
,
the
appellant only made progress enquires through its correspondents on
the
1
st
November 2018,
about
three
months after the request for
reasons for judgment. The
reasons
for
judgment is dated the 31
st
August
2018
,
less
than fifteen court days from the date of the request. They were
received by the respondent on the 17t
h
September
2017
.
At
the time the appellant enquired about the progress of providing the
reasons for judgement
,
the
respondent had already attached the appellant's property in execution
of the judgement a month before on the 31
st
October
2018. The appellant only jumped into action in the face of the
execution warrant. The appellant gives no account of the
period from
the date of
the
request
for reasons for judgment
,
being
the 14th August 2018 until the appeal was noted three
months
later on the 29
th
November 2018.
[15]
The condonation application served on the 9
th
March 2020
is
silent
about the prosecution of the appeal. The application was issued more
than three months after the respondent had re-issued
the warrant of
execution in November 2019
.
An
appeal is prosecuted by filing the record of the proceedings and
applying for the hearing date with the registrar. In terms of
Rule
49(6)(a) of the Uniform Rules, within sixty days after the noting of
appeal
,
an
appellant is obliged to make a written application to the
registrar
for a date for the hearing of such
appeal
,
failing
which a respondent may do so
.
If
an application for the date of the hearing is not made by either
party, the appeal is deemed to have lapsed. Rule 49(6) (b) provides
that the court to which an appeal
is
made may on good cause shown reinstate a
lapsed appeal. There is no application to reinstate this appeal in
the present case
.
The
submission on behalf of the applicant from the bench
,
which does not appear from the papers,
that the appeal could not be prosecuted before it was condoned does
not assist the applicant's
case
.
[16]
The respondent rightly says the appellant has not complied with the
requirements
of Uniform Rule 49(6) and
(7)
and submits that the deeming provision
has kicked in
.
Even
if the late lodging of the appeal can be condoned
,
in view of the failure of the appellant
to prosecute it within sixty days of its lodgement and in the absence
of the application
to reinstate it, the appeal has
lapsed.
[17]
Given the above
,
it
is not in the interest of justice to grant condonation
.
[18]
Having found that the condonation application does not succeed
,
there is no need to consider the merits
of the summary judgment application
.
Costs
[19)
Following the dismissal of the summary judgement
on the 27t
h
July
2018 and after a period of more than two months
,
the respondent attached the appellant's
properties on the 31st October 2018. On the 7th November 2018
,
the appellant's legal representative
directed the letter to the respondent's attorney
requesting
an undertaking to be received by the 9th
November 2018 that pending the receipt of the reasons for judgement
and the noting of an
appeal
,
the
attached properties would not be removed
.
In response and apart from not giving
the requested undertaking, the respondent's attorneys advised that
they received the reasons
for judgement from the provided pigeon hole
on the
17th
September
2018
.
The
appellant's attorneys lodged the appeal on the 29th November 2018
.
[20)
When the appellant failed to set the appeal down for the whole of
2019 and 2020, the respondent set
it
down for the 12t
h
March 2021. Despite the fact that the
appeal was not set down by the appellant and in the face of the
respondent's protestation,
the appellant removed the matter from the
roll of the 12t
h
March
2021
.
This
resulted in the respondent applying for preferential hearing date
.
The appellant's conduct deserves
punitive costs order
.
Order
[21)
The appeal
is
dismissed with costs on attorney and
client scale
.
LGP
LEDWABA
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION
:
POLOKWANE
I
agree
EM
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
For
the appellant:
Adv
G G Mashimbye
Instructing
attorney
:
Magabe
Inc
For
the
Respondent:
Adv
MS Sikhwari
Instructed
by
:
Mthombeni
Attorneys
C/O
DS Sella Attorneys
Heard
on
:
23rd
July 2021
Judgement
delivered on:
28
th
July 2021
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v Na
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v Council for Mine
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2010(2)SA 181(CC
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Van
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As Amicus Curiae)(ZACC 24
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SA 472(CC
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()
B
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2
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The President of the Repub
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& Others 2011
(
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SA
34(CC) par 41
[7]
Van
Wyk
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pa
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[8]
Grootboom
v National Prosecuting Authority & Others ZACC 37
;
2014(2) SA 68(CC);
2014(1)
pars 20 and 35