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[2019] ZAFSHC 88
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Plaatjie NO and Another v Matsepe NO (A154/2017) [2019] ZAFSHC 88 (6 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:A154/2017
In
the matter between:
JOSEPH
TEFO PLAATJIE
N.O.
1
st
Appellant
(In
his capacity as trustee of the
Plaatjie
Family Trust)
MAREA
MAOSEKA PLAATJIE
N.O.
2
nd
Appellant
(In
her capacity as trustee of the
Plaatjie
Family Trust)
and
TSIU
VINCENT MATSEPE
N.O.
Respondent
(In
his capacity as trustee of the
Insolvent
estate of Joseph Tefo Plaatjie
CORAM:
MUSI, JP et MBHELE, J et LOUBSER, J
HEARD ON:
20 MAY 2019
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
06 JUNE 2019
[1]
This is an appeal concerning the interpretation of a clause contained
in an Acknowledgement of debt signed by the Appellants
in favour of
the Respondent. When the Appellants failed or refused to pay in
terms thereof, the Respondent launched an application
in the court
a
quo
, claiming payment of the debt stipulated in the document,
namely the amount of R2.1 million. The application was heard by
Burger, AJ. He granted the claim with costs on an attorney and
client scale on 12 December 2016.
[2]
On appeal before us, it was contended by the Appellants that the
decision of the court below was essentially based on a wrong
interpretation of clause 7 of the Acknowledgement of debt. Also
before us, is an application filed by the Appellants for
an order
granting condonation for their failure to prosecute the appeal
timeously. The initial question is therefore whether
the
default by the Appellants should be condoned and the appeal revived.
[3]
The factual background of the matter is largely common cause and the
disputes fall within a narrow ambit. The insolvent estate
represented
by the Respondent, is that of Dr. Joseph Tefo Plaatjie, a medical
practitioner of Bloemfontein (the insolvent).
He also features
as the First Appellant in the Appeal, while the Second Appellant is
his sister. The Appellants are the only
trustees of the
Plaatjie Family Trust.
[4]
On 17 May 2013 the insolvent sold his residential property to the
Trust for a purchase price of R2.1 million. On the same
day,
the two Appellants signed an Acknowledgement of Debt confirming that
they were indebted to him in the amount of R2.1 million.
The
introductory words of the document read as follows:
“
I/we Joseph
Tefo Plaatjie in my capacity as duly authorized trustee of the
Plaatjie Family Trust IT 73/13 do hereby acknowledge
that we are
truly and lawfully indebted…..”
In
the second paragraph thereof, the following is stated:
“
We promise and
undertake to pay the principal debt to the Creditor as follows
:
(a)
An initial payment of R500 000-00 on or before 31
December 2018.
(b)
Thereafter R500 000-00 at the end of every five year
period thereafter until the balance is paid in full. The
balance
will attract interest at 5% per year”.
[5]
The relevant part of clause 7 of the Acknowledgement reads as
follows:
“
7.
The whole
amount will become due and payable if any of the following events
occur:
7.1.1
My/our death;
7.1.2
Me/us being sequestrated provisionally or finally;
7.1.3
If I/we surrender or transfer my/our estate;
7.1.4
If I/we fail to satisfy a judgment within 3(three) days of being
requested to do so;
7.1.5
If I/we become insolvent or if I/we perform any acts of insolvency;
7.1.6
Any order is made for my/our estate to be administered;
7.1.7
Any order is made for my/our estate to be administered by a curator;
7.1.8
If I/we leave South Africa without notifying the Bank;
7.1.9
In the event I/we fail to make payment or pay an instalment on the
due date.”
[6]
On 10 December 2015, some two and a half years after the signing of
the Acknowledgement of debt, the insolvent was sequestrated.
The
application for payment in terms of the Acknowledgement of debt was
filed by the Respondent in August 2016, some two years
and four
months before the first instalment was due by the Trust. As
could be expected, the Respondent therefore only relied
on the
sequestration of the First Appellant (clause 7.1.2) for his claim in
the court
a quo
. Burger, AJ found in his Judgment that a
reasonable and plausible interpretation of clause 7 must lead to the
conclusion
that the reference to “I/we” means the
trustees in their personal capacity and/or the trustees in their
official capacity.
Because one of them was indeed sequestrated,
the full purchase price had consequently become due and payable, he
found.
[7]
It was contended on behalf of the Appellants that the Judge was wrong
in this respect. The “I/we” must be
interpreted as
a reference to the Trust itself, and since the Trust was not
sequestrated, the debt had not become due and payable,
so the
argument went. The interpretation applied by the Judge, does
not make any commercial sense because the sequestration
of a
trustee would not affect the liability of the Trust itself, it was
contended.
[8]
At this point I deem it appropriate to return to the question of
condonation and the revival of the appeal. Having been granted
leave
to appeal, the Appellants filed their Notice of Appeal on 24 May
2017. In terms of Rule 49(b)(a) they were obliged
to make
written application to the Registrar for a date for the hearing of
the appeal within the next 60 days. Together with
the
application for an appeal date, they were obliged to file with the
Registrar three copies of the record on appeal, and with
the
Respondent two copies thereof.
[1]
The
Appellants therefore had to apply for a date for the hearing of the
Appeal and should have filed the record of appeal on or
before 17
August 2017. 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 copies of the record if the application is
accompanied by a written agreement between the parties
that the
copies of the record may be handed in late.
[2]
If
there is no agreement, the Appellant may deliver 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.
[3]
[9]
Rule 49(6)(a) further provides that, if an Appellant fails to apply
for a date of hearing of the appeal within the abovementioned
period
of 60 days, the appeal shall be deemed to have lapsed. The
Court to which the appeal is made, may on application of
the
Appellant, and on good cause shown, reinstate an appeal which has
lapsed. The Appellants in this matter have failed to
comply
with any of the provisions set out above, and the appeal has
therefore lapsed. It was only during March 2018 that
the
attorney acting for the Appellants received the appeal record from
the Attorneys for the Respondent, who requested him to peruse
same
and then to inform whether he is satisfied with the contents
thereof. The attorney representing the Appellants filed
an
affidavit in the condonation application, and surprisingly, it was
the only affidavit filed in support of the application.
No
affidavits were filed by any of the Appellants to explain the reasons
for their failure to comply with the Court Rules.
[10]
Their attorney had the following to say in his affidavit to explain
their default:
“
As
I was unable to obtain any funds from the Appellants, I was unable to
proceed with the appeal. It needs to be noted that
it was not
only fees and disbursement that was needed, but also an amount of
money that had to be raised as security for the appeal.
On 12
March 2018 a letter was received from Mr. Senekal, previously
practicing as a director of Matsepes Attorneys, confirming
that the
appeal has lapsed and enquiring as to whether the Appellants still
wish to continue with the appeal. A copy of the
aforesaid
letter is hereby attached marked Annexure C. Mr Senekal on
behalf of Mr. Matsepe N.O. then gave notice of his intention
to tax
the costs of the court case forming part of this appeal on 8 November
2018, which taxation was opposed, and a notice to
oppose is hereby
attached marked Annexure D. The Appellants were then informed
that this matter is now critical and that
they will have to raise
funds to continue with this appeal. The necessary funds were
obtained, and they are now in a position
to proceed with the appeal.”
[11]
The papers before us show that the application for condonation and
for reinstatement was only made on 29 January 2019, which
was some 10
months after the Appellants had received the appeal record from the
Respondent’s attorneys. The delay was
no doubt an
inordinate and extraordinary one. For instance, in
EXPRESS
MODEL TRADING 289 CC v DOLPHIN RIDGE BODY CORPORATE
(2014) 2 ALL SA
513
(SCA)
the Appellant filed its Heads of Argument some 2 months late, and the
delay was found to be unacceptable.
[4]
To
make matters even worse for the Appellants, they provided this Court
with no explanation at all for their default. We are
not
informed of the reasons why the funds needed could not be raised
earlier, nor are we informed of how the funds were suddenly
obtained
when the shoe began to pinch. Not even the amount of money that
was eventually raised to continue with the appeal,
is disclosed to
this Court. In addition, this Court does not know whether the
insolvent continued to practice after his sequestration,
and if so,
what his monthly income and expenses were.
[12]
The principles relating to condonation have become settled in our
law, and what is required of an applicant for condonation
should be
trite knowledge among practitioners who are entrusted with the
preparation of appeals to the Court.
[5]
The
degree of non-compliance, the explanation thereof, the importance of
the case, a respondent’s interest in the finality
of the
judgment of the court below, the convenience of the court of appeal
and the avoidance of unnecessary delay in the administration
of
justice, are all factors that usually weigh with a court when it
considers an application for condonation.
[6]
While
I am prepared to assume in favour of the Appellants that the matter
is of substantial importance to them, and that there has
been minimal
inconvenience caused to this Court, I find it difficult to view the
remaining factors with equal indulgence to the
Appellants. As
for the requirement of an explanation for the delay, it has been
stated by the Supreme Court of Appeal,
[7]
that
“
condonation
is not to be had merely for the asking. A full, detailed and
accurate account of the causes of the delay and their
effects 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.”
The application before us is sadly lacking in
all these respects.
[13]
The last question to be decided, is whether the prospects of success
on the merits of the appeal should be taken into account
in such
circumstances. More than a decade ago the Constitutional
Court
[8]
has pronounced itself
clearly on this question in similar circumstances. It said:
“
After
an inordinate delay a litigant is entitled to assume that the losing
party has accepted the finality of the order and does
not intend to
pursue the matter any further. To grant condonation after such
an inordinate delay and in the absence of a
reasonable
explanation,
would undermine the principle
of
finality and cannot be in the interests of justice. 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”.
[9]
Much
earlier the same sentiments were expressed by the Appellate Division
(as it then was) in
BLUMENTHAL
AND ANOTHER v THOMPSON N.O. and ANOTHER
.
[10]
In
that case, the Court found it unnecessary to make an assessment of
the prospects of success. The flagrant breach of the
Rules and
the absence of any acceptable explanation therefore, rendered the
application for condonation unworthy of consideration,
the Court
stated.
[14]
The position in the application before us, is not different.
The delay of some 10 months is inordinate, and there is
no
explanation whatsoever for that delay. In such circumstances, I
am not inclined to consider the prospects of success in
the appeal as
a factor that could justify the granting of the condonation sought by
the Appellants. The application must
therefore fail.
[15]
Even if we were to consider the prospects of success, I am not
entirely persuaded that the Appellants have good prospects of
success
in the appeal. At a first glance, the case for the Appellants
appear to be appealing, but upon further reflection,
there is also
much to be said for the submissions made on behalf of the Respondent,
namely that the words “me/us” in
clause 7.1.2 should be
given their ordinary meaning, as the Court
a quo
did. It
cannot therefore be said, without any reservation, that the
Appellants have shown good prospects of success.
[16]
In the premises, I make the following order:
1. The application for
condonation and for the reinstatement of the appeal is dismissed with
costs.
2. The Applicants for
condonation are ordered to pay the costs incurred by the Respondent
in opposing the lapsed appeal.
_______________
P.
J. LOUBSER, J
I
agree:
_______________
C.
J. MUSI, J.P
I
agree:
_______________
M.N.
MBHELE, J
On
behalf of the Appellant
:
Adv. A.J.R van Rhyn SC
Instructed
by
:
JG Kriek and Cloete
Bloemfontein
On
behalf of the Respondent
:
Adv. D.A Preis SC
Instructed
by
:
F.J Senekal Inc.
Bloemfontein
/db
[1]
Rule 49 (7)(a).
[2]
Rule
7(a)(i).
[3]
Rule
7(a)(ii)
[4]
At
paragraph 20 of the Judgment.
[5]
Uitenhage
Transitional Local Council v South African Revenue Service 2004(1)
SA 292 (SCA) at par.6
[6]
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Limited (2013) 2 All SA 251 (SCA) at par.11;
Federated
Employers Fire and General Insurance Company Ltd v McKenzie 1969(3)
SA 360(A) at 362 F-G
[7]
Per
Heher, JA in Uitenhage Transitional Local Council v SA Revenue
Service,
supra
,
at 297 H-J
[8]
In
Van Wyk v Unitas Hospital and Others 2008(4) BCLR 442 (CC)
[9]
Par.
31 and 33 of the Judgment.
[10]
1994(2)
SA 118 (AD) at 122 A-B