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[2021] ZAGPPHC 164
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Kainvest 3146 CC and Another v Petatype CC and Others (62487/16) [2021] ZAGPPHC 164 (26 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
(2)
OF INTEREST TO OTHER
JUDGES:
YES
(3)
REVISED.
YES
26
February 2021
Case
no: 62487/16
In
the matter between:
KANIVEST
3146 CC
First Applicant
KOOP
DE VRIES
STYGER
Second Applicant
And
PETATYPE
CC
First Respondent
SHIREEN
VAN DER
SCHYFF
Second Respondent
THE
BODY CORPORATE OF THE HAMILTON FORUM
SHARE
TITLE
SCHEME
Third Respondent
NEUKIRCHER
J:
1]
This is an application brought in terms of the provisions of
s31
of
the
Arbitration
Act No 42 of 1965
which states:
“
(1)
An award may, on the application to a court of competent jurisdiction
by any party to the reference after due notice to
the other party or
parties, be made an order of court …”
2]
The arbitration was presided over by (retired) Judge Southwood and
his award
was made available to the parties on 8 August 2019. It is
this award that applicants seek to have made an order of this court.
3]
The present application is premised (in the founding affidavit) on
the allegation
that the respondents
[1]
abandoned their appeal by failing to comply with the provisions of
Rule 49
of the uniform Rules of Court. However, on a reading of the
papers in their entirety, which includes the correspondence that was
made available as part of the affidavits, it appears that the
allegation is that the appeal has lapsed as it was not prosecuted
timeously.
4]
Mr Basson
[2]
correctly conceded
during his argument that the appeal had in fact lapsed. According to
his calculation it lapsed on 2 December
2019; according to
applicants’ calculation it lapsed on 28 November 2019, i.e. the
same day that this application was served.
It is Mr Basson’s
argument that a) the application was premature and that b) as it was
based on a purported abandonment of
the appeal, instead of the
lapsing thereof, the relief sought was not competent.
5]
In any event, as I was informed from the bar, the respondents had now
filed an
application for condonation and reinstatement of the
appeal
[3]
- this was done on
Friday 5 February 2021
[4]
. The
argument was therefore that, given this, the respondents would be
irreparably prejudiced were I to grant this application
and, in any
event, the prospects of success on appeal should be considered in
order to come to a decision in this application.
The facts
6]
The genesis of the matter is to be found in the action proceedings
instituted
by first respondent against first applicant in the Gauteng
Division, Pretoria under case no 85567/2014. It appears that first
respondent
obtained judgment on 19 June 2015 against first applicant
and on 23 November 2016 the first applicant served an application for
recission of that judgment.
7]
The recission application resulted in an order granted by Mavundla
J
[5]
, by agreement between the
parties,
inter
alia
,
as follows:
7.1 the
application for recission was successful;
7.2 the
main application and issues and the costs of the recission
application were referred to Arbitration and
“
8.
The Rules of Court in respect of a trial in the High Court shall
apply in regard to
discovery, pre-trial, further particulars and
other applicable procedures; ….
11.
The ruling of the arbitrator on the merits shall be subject to an
appeal to three arbitrators
to be agreed on and failing agreement
within 10 days, the Chairman of the Law Society of the Northern
Provinces shall be requested
to appoint an arbitration appeal
panel….”
8]
The parties indeed proceeded to arbitration and, as already stated,
the award
was handed down on 8 August 2019. The award was in favour
of the present applicants who were claimants in that arbitration.
9]
On 12 August 2019 respondents’ attorney wrote to applicants’
attorney
and notified them of respondents’ intention to note an
appeal and to suggest “
that a meeting be arranged to discuss
the way forward and what form and manner the appeal should take.”
10]
On 14 August 2019 that meeting took place and the following agreement
was reached:
10.1
that (retired) Judges Harms and du Plessis would be appointed as two
of the three member Appeal Tribunal
(the Tribunal) with the third to
be nominated by respondents
[6]
;
10.2
the appointments were made subject to the availability of the
Tribunal to finalise the appeal by end 2019;
10.3
the respondents would file a Notice of Appeal by 6 September 2019;
10.4
the first applicant would file its notice of cross-appeal by 20
September 2019;
10.5
the parties would meet before 18 October 2019 to finalise the appeal
record; and
10.6
“
6.
As far as we did not deal with any specific matter the Rules of the
High Court will
apply
”
[7]
11]
The Notice of Appeal was served on 5 September 2019 and the Notice of
Cross-Appeal on 16 September
2019.
12]
However, this is where compliance with the agreement
[8]
ended as, although the instruction to type a record was given to the
transcriber on 19 September 2019 and her quote received on
4 October
2019, it was only on 19 November 2019 that the 50% deposit sought in
that quote
[9]
was paid.
13]
According to the quote of 4 October 2019 a record (unless urgent
transcription was required) would
take 2-3 weeks. But this is still
not the end – the transcriber informed respondents that she
would not be available for
any typing from end November 2019
[10]
as her offices would be closed.
14]
Therefore, when the instruction to commence typing was given on 19
November 2019 it was clear
that it was highly unlikely that a
transcript would be received timeously in terms of Rule 49(7)(a) and,
of course, the meeting
scheduled for 18 October 2019 to “finalise
the appeal record” could not take place and neither could the
finalisation
of the appeal
[11]
.
15]
According to the respondents’ attorney, despite enquiries
directed by him to the transcriber
in mid-January 2020, the
transcription was only received on 15 February 2020 and it took until
25 February 2020 to deliver it to
applicants.
16]
From the flurry of correspondence thereafter between the parties’
attorneys, it is clear
that applicants took the view that the
respondents had abandoned the appeal as firstly, the record was not
filed timeously and,
secondly, no date of hearing had been sought
from the Tribunal within the time period set out in Rule 49.
17]
As a result, on 28 November 2019 the applicants launched the present
application.
18]
Then, on 11 December 2019 the respondents’ attorney informed
applicants’ attorney
that:
18.1
it is denied that respondents had abandoned the appeal;
18.2
the 70 days provided for in Rule 49(6)(a) only lapses on 12 December
2019;
18.3
his client instructed him “
to
immediately request …. a date for the hearing of the appeal
and cross-appeal”
which would be done
“
in writing today the 11
th
of December 2019 so as to ensure that our client’s appeal does
not lapse
”;
18.4
the application was therefore premature.
19]
The response to this letter is dated 25 February 2020 in which the
following is stated:
19.1
the appeal lapsed on 29 November 2019;
19.2
there is no proof that the Tribunal was requested to set a date of
hearing on 11 December 2019;
19.3
there was no proof that the Tribunal was properly constituted;
19.4
in terms of Rule 49(6)(a) the appeal had lapsed;
19.5
there was no compliance with Rule 49(7)(1)(i) or (ii);
19.6
there had been no compliance with Rule 43(13);
19.7
the record filed “
constituted but an
extract from the evidence as transcribed by the stenographer”
and there was non-compliance with Rule 49(7)(a).
20]
The relevant portions of Rule 49 read as follows:
“
49
Civil Appeals from the High Court
(1) …
(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)…
(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) …
(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) …
(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. “
21]
At this stage it is common cause that:
21.1
the appeal “record”
[12]
was filed late;
21.2
whilst respondents’ attorney had stated that he intended to ask
the Tribunal for a date of hearing,
there is no proof that he had in
fact done so;
21.3
there is no proof that respondents had provided security for the
costs of the appeal;
21.4
the correctness of the appeal record is disputed;
21.5
when this application was launched, and when the answering affidavit
was filed, the respondents had
not yet launched their application for
condonation and reinstatement of the appeal – as stated, this
was only done on Friday
5 February 2021
[13]
22]
What is also common cause is that the respondents filed their
answering affidavit to the present
application on 7 August 2020 where
the following timeline is relevant:
22.1
the application was served on 28 November 2019;
22.2
notice of intention to oppose was filed on 11 December 2019;
22.3
the answering affidavit was thus due on or before 8 January 2020
[14]
;
22.4
in a letter of 19 December 2019 the respondents’ attorney
stated that if the application was
not withdrawn, the answering
affidavit would be filed by the third week of January 2020;
22.5
the application was not withdrawn and no answering affidavit was
filed by the Friday of the third week
in January 2020
[15]
.
23]
In fact, there is no explanation in any correspondence as to why the
answering affidavit was not,
or could not be, filed in the indicated
period. Instead, it is clear that when no affidavit was received by
end
July 2020
[16]
, the
applicants filed a Notice of Set Down on the unopposed motion roll
for 25 August 2020. This appears to have galvanised
the
respondents into action and when the affidavit was finally served on
7 August 2020, the application was removed from the unopposed
roll.
24]
The applicants have objected to the late filing of the answering
affidavit and have asked that
it be struck out.
The answering
affidavit and condonation
25]
Mr Scheepers
[17]
argues that
respondents’ explanation for the late answering affidavit is
wholly inadequate as not only have respondents failed
to disclose
that they undertook to file the affidavit in late January 2020, but
they failed to disclose why they did not adhere
to their undertaking
. He argues that their explanation for the lateness is simply
inadequate and does not cover the entire period
in question.
26]
In
Van
Wyk v Unitas Hospital and Another
[18]
(
Van
Wyk
)
the following was stated in respect of an application for
condonation:
“
This court
has held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effect of
the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success …
An
applicant for condonation must give a full explanation for the delay,
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation must be reasonable
…
[19]
27]
In this matter the respondents’ explanation is the following:
27.1
the letter of 19 December 2019 is set out which includes the
undertaking to file the answering affidavit
by the third week of
January 2020
[20]
;
27.2
“
4.24 On 16 January 2020 my offices followed up
with Ms Beetje on the
status regarding
the transcription.
4.25
The typed record of the proceedings was received from Ms
Beetje on
16 February 2020.
4.26
On 25 February 2020 the record of the proceedings, as typed by Ms
Beetje, was delivered.
4.27
On 27 February 2020, subsequent to the delivery of the record as
typed by the Ms
Beetje, the applicants attorneys of record addressed correspondence
reiterating its version of the time periods,
alleging that the
respondents appeal had lapsed and stating the applicants do not agree
with the record filed and stated that according
to their views the
respondents failed to comply with the relevant Rules of Court and
that the letter therefore serves as a notice
in terms of Uniform
Rules 30(2) and 30A(i), (Annexure “JC12”);
4.28
As the respondents had every intention of prosecuting its appeal to
finality and instructed our offices accordingly,
they had no other
option but to wait for the record to be finalised and typed before
any further steps could be taken.
4.29
Due to the National Lockdown which commenced on 27 March 2020 it is
logical that the allocation of a date
for the hearing of the appeal
would only be arranged once the lockdown has expired.
4.30
In light of the facts, as more fully set out herein above, it is
clear that the respondents, at all relevant
times, had the bona fide
intention to proceed with their appeal and to prosecute their appeal
to finality.
4.31
As previously communicated and insofar as it may be necessary,
respondents as well as the applicants insofar
as they intend to
proceed with their cross-appeal would have to apply in terms of the
provisions of Uniform Rule 49(6)(b) for the
reinstatement of the
appeal and the cross-appeal…”
28]
The respondents then set out their prospects of success on appeal and
conclude:
“
5.1
I submit that the respondents, at all relevant times have been bona
fide in their attempts to
prosecute the appeal and were hampered due
to circumstances beyond their control.
5.2
The explanation as set out herein above read together with the
respondents prospects of
success constitute good cause for the
purposes of consideration of any application made to reinstate the
respondents appeal insofar
as it may be necessary and insofar as the
respondents appeal have lapsed.(sic)
5.3
The application launched by the applicants is premature and should be
dismissed.”
29]
Later in the answering affidavit, under a heading of “
Condonation
for the late filing of the answering affidavit”,
the
respondents add the following:
29.1
the attorneys’ offices closed on 19 December 2019 for the
festive season and only re-opened on
6 January 2020;
29.2
upon receipt of the record the respondents requested an opinion on
their prospects of success on appeal
“
which
opinion was obtained”
[21]
;
29.3
the National Lockdown commenced on 26 March 2020 and it was “
clear
that the probability of having the appeal heard in the near future
was slim to none”;
29.4
due to the restrictions of movement imposed by the lockdown “
it
was impossible for the respondents to properly consult with its
instructing attorney and counsel in order to draft this opposing
affidavit” and the respondents were only in a position to
consult and give instructions “during the course of July
2020”.
30]
Given this, the respondents request
30.1
condonation for the late filing of the answering affidavit; and
30.2
that the application be dismissed with costs
alternatively
be
postponed pending the outcome of the appeal and cross-appeal.
31]
In
Grootboom
v National Prosecuting Authority and Another
[22]
(Grootboom)
Bosielo AJ noted that the court seized of the matter has the
discretion whether to grant or refuse condonation and that the test
to be applied is the interests of justice
[23]
32]
To decide this the court will apply the following standard:
“…
the
standard for considering an application for condonation is the
interests of justice. However, the concept “interests of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the nature
of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants;
the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and the prospects
of
success. It is crucial to reiterate that both Brummer and Van
Wyk emphasise that the ultimate determination
of what is in the
interests of justice must reflect due regard to all the relevant
factors but it is not necessarily limited to
those mentioned above.
The particular circumstances of each case will determine which of
these factors are relevant”.
[24]
.
33]
However in
Grootboom
Zondo J (as he then was) also
stated:
“…
.
The interests of justice must be determined with reference to all the
relevant factors. However, some factors may justifiably
be left out
of consideration in certain circumstances.
For
example, where the delay is unacceptably excessive and there is no
explanation for the delay, there may be no need to consider
the
prospects of success
.
If the period of delay is short and there is an unsatisfactory
explanation but there are reasonable prospects of success,
condonation
should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused where the
delay
is excessive, the explanation is non-existent and granting
condonation would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken into account to arrive at a conclusion as to what is
in the
interest of justice”
[25]
.
The delay
34]
To summarise respondents’ case on this issue, the reason for
the delay in filing their affidavit
[26]
was because:
34.1
the record was not available timeously;
34.2
the attorneys’ offices were closed from 19 December 2019 to 6
January 2020;
34.3
the record was only received on 16 February 2020;
34.4
National Lockdown commenced on 26 March 2020 and it was impossible to
consult to draft the answering
affidavit;
34.5
they were only able to consult in July 2020.
35]
But where this argument fails is in the detail:
35.1
by the time the undertaking of 19 December 2019 was given, previous
correspondence between the parties
had made it abundantly clear that
applicants were of the view that respondents had failed to prosecute
their appeal timeously /
properly and it had been abandoned or had
lapsed. Service of the application simply confirmed this;
35.2
the respondents letter of 19 December 2019 demanding withdrawal of
the application appears to
be no more than a play for time –
and by that stage instructions could, and should, have been given to
commence drafting
the answering affidavit as well as the application
for reinstatement of the appeal. At the very latest, instruction
should have
been given on 6 January 2020 when respondents attorney’s
offices re-opened. On their own version there is no indication that
this occurred;
35.3
by the time Lockdown commenced on 26 March 2020 two months had passed
since the date on which the affidavit
would be filed pursuant to the
undertaking – there is absolutely no explanation provided
regarding why the affidavit was
not filed either on the timeline per
the undertaking, or before Lockdown started;
35.4
whilst I am aware of the difficulties experienced by legal
practitioners in obtaining essential service
permits in the initial
phases of Lockdown
[27]
this
cannot be used as an excuse when it comes to consultations. The
courts in Gauteng have run constantly (and with initially
very few
exceptions) throughout Lockdown via videoconferencing using either
Microsoft Teams or Zoom and this includes the Urgent
Court where
affidavits are drafted on very short notice. There is no reason why a
consultation could not have been set up in this
matter using one of
the above methods. In addition to these, WhatsApp has a
videoconferencing facility as does Telgram and Skype.
Any one of
these methods could and should have been used to consult.
Furthermore, draft affidavits could be circulated via email
and
further videoconferences convened to finalise those;
35.5
no explanation has been given as to whether these methods were even
attempted;
35.6
in July 2020 South Africa was still in Lockdown – at that stage
it was at Level 3 – and
the excuse used in paragraph 29.4 supra
rings hollow. What is more is that no details are given on
exactly when the consultation
eventually took place in July 2020 or
why it took until 8 August 2020 to file the answering affidavit.
There is also no explanation
that has been placed before me to
explain why it took until 5 February 2021 to file an application for
condonation and reinstatement
of the appeal.
36]
When considering whether condonation should be granted in the factual
matrix presented in the
present application, and even were there
prospects of success, the respondents would not necessarily overcome
the hurdle of their
failure to prosecute their appeal timeously or
their failure to provide a full explanation for their lapses as set
out
supra.
In fact, in
Aymac
CC v Widgerow
[28]
the full court hearing an application for condonation, and in similar
factual circumstances to the present
[29]
,
stated in following
United
Plant Hire (Pty) Ltd v Hills and Others
[30]
and
Saloojee
and Another NO v Minister of Community Development
[31]
:
“
[41]
…If the appellants in this matter were granted a reinstatement
it is hard to conceive of a matter,
where the prospects of success
favour the appellant in which a reinstatement could be refused. I am
sorry for the appellants in
this matter, since, as I have indicated,
their appeal would otherwise have succeeded, but this is not a case
where we can turn
a blind eye to the omissions of their chosen
agents. They have their remedy in law. But I also bear in mind that
the appellants
themselves are not entirely free from blame. They knew
at least since the judgment of Snyders J of the remissness of their
attorney,
and yet allowed the situation to continue.”
37]
In my view there is a complete dearth of information to consider the
present application for condonation.
I am of the view that the extent
of the delay is unacceptably excessive and coupled with this the
complete failure of the respondents
to explain the delay has resulted
in my view that there is no need to consider prospects of
success.
[32]
38]
I am also of the view that, in any event, to allow a postponement of
the matter until the
Tribunal has considered the application for
condonation and reinstatement would not be in the interests of
justice. It is however
in the interests of justice that any
proceedings should be conducted as expeditiously as possible in order
to achieve finality
as “justice delayed is justice denied.”
In this matter, the proceedings were initiated in 2014
[33]
.
It is now seven years later and the applicants are seeking, and are
entitled to, finality.
39]
Therefore, given the above circumstances, to grant condonation for
late filing of the answering
affidavit would condone the respondents’
conduct and given the concession that the appeal has in fact lapsed
makes the distinction
between an “abandonment” and a
“lapsing” semantics in circumstances where there simply
is no appeal at
all. The issue of whether this application is
premature or not is also irrelevant in light of the fact that the
appeal has lapsed.
To dismiss it would only trigger another
application which would be a waste of time and costs and further
delay the finalisation
of the matter.
Conclusion
40]
Thus condonation is refused and the answering affidavit is struck
out.
41]
This being so, I am of the view that the application should succeed
and the arbitration
award made on 8 August 2019 should be made an
order of court and costs should follow the result.
Order
42]
The order I thus make is the following:
42.1
the arbitration award handed down on 8 August 2019 is made an order
of court;
42.2
the respondents are ordered to pay the applicants costs.
NEUKIRCHER J
Date of hearing: 9
February 2021
Date of judgment: 26
February 2021
Hearing
conducted via videoconferencing
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 26 February 2021.
Counsel
for applicants: Adv GJ Scheepers
Instructed
by: Jaco Roos Attorneys Inc
Counsel
for respondents: Adv JGW Basson
Instructed
by: Jacques Classen Attorneys
[1]
The
appeal was lodged by and this application opposed (respectively) by
first and second respondents
who shall be
referred to as “the respondents” in this judgment
[2]
Who appears
for the respondents
[3]
This was not
placed before me nor was I provided with a copy
[4]
The
matter was argued before me on 8 February 2021
[5]
On 2
November 2017
[6]
It
was later agreed that this would be Adv Rip SC
[7]
i.e. Rule
49. This is common cause between the parties, and in their answering
affidavit the
respondents
state:
“
4.6
It has always been the agreement and my understanding that the
Uniform Rules
of Court would remain applicable”
[8]
Par 10
supra
[9]
Which was a
requirement to commencing the transcription
[10]
This
in an email dated 5 November 2019. She states in an affidavit filed
and which is attached to the
replying
affidavit, that her office was closed from 28 November 2019 until 18
January 2020
[11]
Par 10.2
supra
[12]
It being
apparent from the correspondence that the record was actually
incomplete and it was
undisputed
that the parties had not yet agreed on what would constitute the
appeal record
[13]
And no copy
was provided to me
[14]
Rule
6(5)(d)(ii)
[15]
ie. at best
for respondents by 24 January 2020 (the last week not being a full
week as 1 January 2020
was
a Wednesday)
[16]
ie. more
than six months later
[17]
For
applicants
[18]
2008(2) SA
472 (CC) at paras [20] and [22]
[19]
In that case
the appellant took 11 months for her to decide whether or not to
appeal and blamed the
delay
on her attempt to decide whether or not to appeal and on a lack of
funds (ie. she did “not have unlimited funds”)
–
the condonation application was dismissed
[20]
In setting
this out, the respondents have disclosed their undertaking
[21]
No details
whatsoever have been given regarding who was briefed or when ,
nor when the opinion
was
received
[22]
(CCT
08/13) [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC);
[2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October
2013) at
para [50]
[23]
At para [22]
[24]
Also
South
African Broadcasting Corporation SOC Limited v South African
Broadcasting Corporation
Pension
Fund and Others
(17/29163) [2019] ZAGPJHC
86;
[2019] 2 All SA 512
(GJ);
2019 (4) SA 608
(GJ) (18 January 2019)
[25]
Grootboom
at para [51]
[26]
Either by 8
Jan 2020 (ie. The 15 day period in terms of Rule 6) or the third
week of January 2020 as
per
their undertaking of 19 December 2019
[27]
Having
encountered this issue whilst presiding over the many courts in the
past +- 11 months
[28]
2009 (6) SA
433
(WLD) at para [34], [38] and [41]
[29]
In
an appeal which had lapsed and in which the appellant had brought an
application for condonation and reinstatement. Although
the notice
of appeal in
Aymac
was filed timeously, the date for the hearing of the appeal was
filed late, the appeal record was filed late, as were the powers
of
attorney. To compound matters, the application for reinstatement was
also not filed “at the earliest opportunity”
- at para
[34]
[30]
1976 (1) SA
717
(A) at 720 E-G
[31]
1965 (2) SA
135
(A) at 141 C-E
[32]
See
Van
Wyk
(supra) “
[33] The
applicant has submitted that her application for leave to appeal
bears
prospects
of success.
Prospects of success pale into insignificance
where, as here, there is an inordinate delay coupled with the
absence of a reasonable
explanation for the delay
. And the
issue is moot. There is now a growing trend for litigants in
this Court to disregard time limits without
seeking condonation.
Last term alone, in eight out of ten matters, litigants did
not comply with the time limits or the
directions setting out the
time limits. In some cases litigants either did not apply for
condonation at all or if they
did, they put up flimsy explanations.
This non-compliance with the time limits or the Rules of Court
resulted in one matter
being postponed and the other being struck
from the roll. This is undesirable. This practice must
be stopped in its
tracks.”
[33]
Par
6
supra