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[2018] ZAGPJHC 576
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Eagle Creek Investments 472 (Pty) Ltd v Focus Connection (Pty) Ltd and Another (A5007/2018) [2018] ZAGPJHC 576 (19 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A5007/ 2018
Date
of Hearing: 09 October 2018
Date
of Judgment: 19 October 2018
In
the matter between:
EAGLE
CREEK INVESTMENTS 472 (PTY)
LTD
Applicant
And
FOCUS
CONNECTION (PTY)
LTD
First
Respondent
(REG.
NO.
1995/08870/07)
QIN
JIANG
Second
Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This is an application in terms of Rule 30A of the Uniform Rules of
Court. The Applicant alleges that the launching of this
application
became necessary as a result of the Respondents’ persistent
non-observance of Rule 49(13). Once there was lack
of compliance with
the rule all other steps, which the Respondent took, according to the
Applicant, had to be irregular. The Applicant
seeks relief in the
following terms:
‘
1 That the filing of the record
in appeal by the Respondents, in terms of the Filing Sheet dated 14
May 2018, be set aside as an
irregular step;
2 That the Respondents’
application for an appeal date, dated 14 May 2018 be set aside as an
irregular step;
3 That the filing of the Respondents'
heads of argument in the appeal be set aside as an irregular step;
4 That the filing of the Respondents’
Practice Note in the appeal be set aside as an irregular step;
5 That the filing of the Respondents’
notice of security be set aside as an irregular step;
6 Declaring that the Respondents’
appeal of the summary judgment granted under case number
5738
/ 2018
(in the High Court of South Africa, Gauteng
Local Division, Johannesburg) has lapsed;
7 That the Respondents pay the costs
of this application on the scale as between attorney and client,
jointly and severally, the
one paying the other to be absolved;’
FACTUAL
BACKGROUND
[2]
The facts are largely common cause. On 10 May 2017, this Court
granted summary judgment against the Respondents. Upon dismissal
of
their application for leave to appeal, the Respondents petitioned the
Supreme Court of Appeal (‘SCA’). On 19 December
2017, the
Supreme Court of Appeal granted them leave to appeal and specifically
directed that the appeal be heard by a full court
of this division.
On 13 February 2018, the Respondents served their notice of appeal.
[3]
Following the granting of the leave to appeal by the SCA, the
Applicant applied for security for costs of appeal in terms of
Rule
49(13). On 18 April 2018, the Registrar of this Court fixed the
security for costs of the appeal at the amount of R65 000.00and
ordered that it be secured by way of a bank guarantee within 30 days
from 18 April 2018. On 17 May 2018, the Respondents delivered
a
notice for security for costs without providing the actual security.
[4]
On 04 June 2018, the Applicant served a Rule 30A notice on the
Respondents to which they responded by delivering a notice in
terms
of Rule 30A (1) on 18 June 2018. The Respondents subsequently sought
permission from the Judge President of the Gauteng Division
that the
appeal be heard by a Full Court of the Gauteng Division of the High
Court in Pretoria and not as directed by the SCA that
the appeal be
heard by the full court of this Court.
[5]
Unaware of the existence of the SCA order, the Judge President
directed that the matter be heard by a Full Court of this Court.
When
it later transpired to the Judge President that the order of the SCA
specifically provided otherwise, he withdrew his consent.
The Judge
President’s withdrawal of the permission notwithstanding, the
Respondents proceeded to lodge the following documents
with the
Gauteng Division in Pretoria on 15 May 2018:
5.1 Application for
appeal date;
5.2 Record of appeal;
5.3 Respondents’
heads of argument;
5.4 Practice note;
5.5 Notice for security
for costs without the provision of the actual security.
ASSERTIONS
OF THE PARTIES
[6]
The Respondents are persistent that insofar as they are concerned,
they have complied with the Rule pertaining to the provision
of
security (Rule 49(13)(a)), notwithstanding that they only served the
notice for security for costs without the actual security.
They
further assert that in view of the bank manager’s letters to
the Applicant, this was done timeously as envisaged by
the relevant
Rule. The Applicant, on the other hand, is adamant that the steps
that the Respondents have taken before providing
security for costs
are irregular and that the appeal should be declared to have lapsed.
ISSUES
FOR DETERMINATION
[7]
This Court must decide whether or not:
7.1 The steps taken by
the Respondents with the objective of advancing the matter towards
its final hearing are irregular as contemplated
in Uniform Rule of
Court 30A; and
7.2 The appeal has
lapsed.
LEGAL
PRINCIPLES
[8]
Rule 49(6)(a) provides:
‘
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.’
[9]
This Court held in
Aymac CC v Widgerow
2009
(6) SA 433
(W) at 440H–441I, with regard to the above rule
that, where an application for a date for the hearing of the appeal
fails
to comply with the Rule, the appeal if set down, should be
struck off the roll. Similarly, if an appellant fails to serve
notices
of appeal or court records within the time provided under
Rule 49(2) and 49(6)(a) respectively, it will cause the appeal
to lapse with fatal consequences unless an application to reinstate
it is launched. See,
Panayiotou v Shoprite
Checkers (Pty) Ltd and Others
2016 (3) SA 110
(GJ) at paragraph 13.
[10]
Rule 49(13)(a) provides that:
‘
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.’
It
was held in Boland
Konstruksie Maatskappy
(Edms) Bpk v Petlen Properties (Edms) Bpk
1974 (4) SA 291
(C) that if security is not provided as stipulated in
this Rule an appeal may be struck off the roll.
[11]
Chapter 7 of the Practice Manual of this Court provides further that:
‘
Once an
appeal has been timeously noted, the registrar shall not accept any
appeal matter [as contemplated in Rule 49(2), 6(a) and
7(a) or Rule
50 6(a) and 7(a)], unless the appellant or the attorney of the
appellant simultaneously submits to the registrar:
1.1
A complete record, indexed and paginated;
1.2
The appellant’s heads of argument and practice note.
The registrar
shall thereupon allocate a case number and shall issue an
acknowledgement of receipt thereof.’
[12]
It has been held that the lodging of the record with the Registrar
prior to the provision of security constitutes an irregularity
as
envisaged in Uniform Rule of Court 30A. In this regard the case of
Jyoti Structures Africa (Pty) Ltd v KRB
Electrical Engineers; Masana Mavuthani electrical and Plumbing
Services (Pty) Ltd t/a KRB
Masana
2011 (3) SA
231
(GSJ) is instructive.
[13]
The Applicant initially insisted that the Respondents served their
notice of appeal out of time having regard to the date on
which the
SCA granted the petition, 19 December 2017. However, while the
Applicant did not, in so many words, state that it was
prepared to
accept that in view of the fact that the Respondents were only
notified of the order of the SCA on 17 January 2018,
it would not
rigorously hold the Respondents to compliance with Rule 49(6)(a). For
that reason I do not consider it necessary to
traverse the point
whether there was compliance or not.
ANALYSIS
[14]
On 18 April 2018, the registrar determined the amount of security for
costs in the amount of R65 000 and decreed that
it be provided
within 30 days from that date. The 30 day period lapsed on 01 June
2018. The date of 01 June 2018 came and went
without the Respondents
furnishing security for costs to the registrar. The Respondents had
at that stage only served a notice
for security for costs without
providing the actual security.
[15]
The Court was advised during argument that the Respondents were still
to provide security for costs to date. In terms of Chapter
7 of the
Practice Manual, ‘the registrar shall not accept any appeal
matter [as contemplated in Rule 49(2), 6(a) and 7(a)
or Rule 50 6(a)
and 7(a)], unless the appellant or the attorney of the appellant
simultaneously submits to the registrar, a complete
record, indexed
and paginated, heads of argument and practice note.’
[16]
Accordingly, the Respondents’ failure to provide security
timeously, on or before 01 June 2018, precluded them from furnishing
the registrar with the appeal record, heads of argument and practice
note. See, Chapter 7 of the Practice Manual supra. All the
steps that
the Respondents took without providing security to the registrar in
an attempt to advance the matter towards a hearing
date are irregular
as contemplated in Rule 30A.
[17]
Initially, the Respondents were persistent that the matter be heard
in the Gauteng Division of the High Court in Pretoria.
However, by
the time the parties came before Court, the Respondents had accepted
that the order of the SCA has directed that the
matter be heard by
the Full Court of this Court. I did not hear any opposition from the
Applicant and I therefore regard the matter
as resolved.
CONCLUSION
[18]
In the circumstances, I find as follows:
18.1
All the steps that the Respondents took prior to furnishing security
for costs are irregular as envisaged in Rule 30A;
18.2
The appeal has lapsed.
ORDER
[19]
In the result, the application succeeds and I make the following
order:
19.1 The submission of
the record of appeal by the Respondents to the Registrar on 15 May
2018 is set aside as an irregular step;
19.2
The Respondents’ application for appeal
delivered on 15 May 2018 is set aside as an irregular step;
19.3
The filing of the Respondents' heads of argument
in the appeal is set aside as an irregular step;
19.4
The filing of the Respondents’ Practice
Note in the appeal is set aside as an irregular step;
19.5
The filing of the Respondents’ notice of
security without furnishing the actual security is set aside as an
irregular step;
19.6
The Respondents’ appeal of the summary
judgment granted under case number
5738/
2018
by this Court has lapsed;
19.7
The Respondents are ordered to pay the costs of
this application jointly and severally, the one paying the other to
be absolved.
______________________________________
B
A MASHILE
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
APPEARANCES:
For the Applicant: Adv. R
Boueer
Instructed
by: Craig Berg Inc Attorneys
For
the Respondents: In person