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[2018] ZAECMHC 22
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Saliwa v MEC for Local Goverment and Traditional Affairs and Others (2244/2010) [2018] ZAECMHC 22 (8 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 2244/2010
LUNGISILE
JOSEPH SALIWA
Applicant
and
MEC
FOR LOCAL GOVERNMENT &
TRADITIONAL
AFFAIRS
1
st
Respondent
INKOSI
ZWELIDUMILE NDARALA
2
nd
Respondent
NDARALA
TRADITIONAL COUNCIL
3
rd
Respondent
JUDGMENT
KUNJU
AJ:
[1]
The applicant calls for the support of this court and urges it to
find that the appeal in this matter has lapsed.
[2]
In that quest he has couched his relief in this fashion:
2.1
that the
respondents’ appeal to the full bench of the above
Honourable court against the judgment of the Honourable Nhlangulela
DJP delivered on 2 April 2015 be and is hereby declared to
have
lapsed; and
2.2
directing the respondent to pay wasted occasioned by the noting of
the appeal including
costs of the application for leave to appeal.
(underlining is mine).
[3]
In the main proceedings Nhlangulela DJP decided the headmanship
dispute of Keilands Administrative Area in favour of the applicant.
[4]
The application is located on the provisions of rule 49(6)(a) of the
Uniform Rules of Court (the Rules).
[5]
The applicant in the main application sought and obtained an order in
the following terms:
5.1
That the first respondent be and is hereby directed to consider the
applicant’s request
for recognition as Inkosana of Keilands
Administrative Area No.41 in the District of Cofimvaba.
5.2
That the first respondent pays the costs of this application.
[6]
Dissatisfied with the judgment and the order delivered on 2 April
2015 the first respondent launched an application for leave
to
appeal against the said Judgment and or order on 23 April 2015.
[7]
The application for leave to appeal was ultimately heard on 2
December 2015, on which date the applicant was granted leave to
appeal to the full court of this division on 28 January 2016.
[8]
On 28 September 2016 the respondents launched an application for late
noting of an appeal in terms of rule 49(2) of the rules.
[9]
A purported notice of appeal pursuant to the granting of leave to
appeal was delivered only on 24 February 2017, over a year
after the
leave to appeal had been granted.
[10]
It appears that the respondent in that application (Lungisile Joseph
Saliwa) delivered his answering affidavit on 07 October
2016.
[11]
The said application is pending and as pointed out above the
respondent has opposed the application. As argued by the
applicant in this matter no replying affidavit has been delivered by
the respondents in that application. To my mind nothing
turns
on that as the rule regulating the delivery of a replying affidavit
is not couched in peremptory terms.
[12]
Despite the fact that there is no appeal as yet to the full court,
the applicant on 23 June 2017, (that is after the application
for
extension of time for late noting of an appeal was issued) instituted
this application.
[13]
Emerging from the above, the following issues fall to be determined
in this application, namely:
13.1
is there an appeal yet to the full bench of this court; and
13.2
was the appropriate route for the applicant (Mr Saliwa) not to ensure
that the condonation application for
the late noting of the appeal is
set-down and finalised.?
[14]
The instant application is founded on the provisions of rule
49(6)(a), which provides thus:
“
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
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
”
[15]
In my view, rule 49(6)(a) becomes applicable as soon as an appeal is
noted. In this matter no appeal has been noted and
in
appreciation of that fact the respondents launched an application
for condonation. Such condonation application is also
opposed
by the applicant in this application. The opposition signals
refusal to accept the late noting of an appeal.
That can only
be the essence of opposition to the late noting of the appeal
application.
[16]
If no appeal was timeously noted the application to the effect that
such appeal has lapsed does not pass muster. The
appeal can
only be said to have lapsed if it had been noted. Prayer one to
this application is premised on the incorrect
position that there was
an appeal issued to the full court. The reality of the matter
is, legally speaking, no such appeal
is in existence. Otherwise
there would be no application for condonation for the late noting of
an appeal.
[17]
I am of the view that the order granting a litigant leave to appeal
is not in and by itself a notice of appeal. Similarly,
the
alleged notice of appeal which is, correctly so, not acknowledged by
the respondents as existing is not properly before court.
In
the context of this matter what would have brought the appeal into
being would have been the timeous noting thereof.
[18]
For all the above reasons, I am of the view that:
18.1
in the absence of a proper notice of appeal, an application in terms
of rule 49(6)(a) is inappropriate; and
18.2
to the extent that a determination is not made as yet on the
respondents’ application for late noting
of an appeal, this
application was launched prematurely.
[19]
The respondents would ordinarily have been entitled to costs of this
application, but for the reasons that follow I am of the
view that in
exercise of my discretion they should be deprived of such costs.
The reasons are:
19.1
the failure to deliver notice of appeal in time is their fault;
19.2
in this matter on 18 July 2017 they were directed to deliver their
answering affidavits by Brooks J not later
than 3 August 2017, but
the affidavit was delivered only on 7 August 2017 without any
explanation for failure to comply with a
court order having been
given; and
19.3
no heads of argument were delivered by the respondents as required by
paragraph 8(h) of the Joint Rules of
Practice for the High Court of
the Eastern Cape.
[20]
For all the reasons stated above, I make the following order:
20.1
The application in terms of rule 49(6)(a) of the Uniform Rules of
Court is dismissed.
20.2
There is no order as to costs.
V
K KUNJU
JUDGE
OF THE HIGH COURT (ACTING)
Counsel
for the Applicant:
M.
Mdodana
Instructed
by
D. Z. Dukada & Company
No.
73 Nelson Mandela Drive
MTHATHA
Counsel
for the Respondents:
N.
Mxotwa
Instructed
by
State Attorney
29
Western Road
Port
Elizabeth
c/o
State Attorney Mthatha
Broadcast
House
Fortgale
MTHATHA
Matter
heard on:
26 April 2018
Matter
delivered on:
08 May 2018