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[2018] ZAECMHC 48
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Eskom v Nikelo (CA38/18) [2018] ZAECMHC 48 (21 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION - MTHATHA)
CASE
NO.: CA 38/18
COURT
A QUO
CASE NO.: 226/15
In
the matter between:
ESKOM
Appellant
(Respondent in Court
a
quo
)
and
VUSUMZI
NIKELO
Respondent
(Applicant in Court
a
quo
)
FULL
BENCH APPEAL JUDGMENT
HUISAMEN
AJ
[1]
This is an application for condonation of
the failure of Eskom (Appellant) to prosecute its appeal against an
order of Pakade J,
which order confirmed a
rule
nisi
which had directed the appellant
to forthwith reconnect the electricity supply to the respondent’s
homestead at Tsolo.
[2]
The respondent has filed the appeal record
and, as I understand the situation, the appeal is also before us
should the application
for condonation be successful.
[3]
The time line relevant to the application
for condonation can be summarized as follows:
(a) On 28 January
2015 the respondent launched an urgent application in the Mthatha
High Court for the reconnection of the electricity
supply to the
homestead where he was residing with his wife. The property in
question is registered in the name of the respondent’s
wife.
(b) On 29 January
2015 the application papers were served on the appellant;
(c) On 3 February
2015 a
rule nisi
was issued;
(d) On 3 February
2015 the appellant reconnected the respondent’s electricity
supply;
(e) On 5 February
2015 the appellant filed its notice of opposition;
(f) On 25 February
2015 the appellant filed its answering affidavit;
(g) On 17 April
2015 the respondent filed his replying affidavit;
(h) On 1 September
2015 the
rule nisi
was confirmed by Pakade J in an
ex
tempore
order;
(i) On 1 September
2015 the appellant filed its request for reasons;
(j) On 13 June 2016
the written reasons for the order were handed down;
(k) On 4 July 2016 the appellant filed
its application for leave to appeal;
(l) On 17 March
2017 the application for leave to appeal was heard and granted by
Makaula J;
(m) Shortly after
the granting of the leave to appeal the appellant’s Mthatha
attorneys sought authorization from the appellant’s
Johannesburg attorneys to prosecute the appeal;
(n) During July
2017 the appellant’s Johannesburg attorneys instructed the
appellant’s Mthatha attorneys to proceed
with the appeal;
(o) The Appellant’s
Mthatha attorneys thereafter instructed someone at their office to
brief counsel to prepare the notice
of appeal;
(p) The appellant’s
attorneys assumed that this was done;
(q) On 25 September
2017 the appellant’s attorneys realized that the notice of
appeal had not been prepared and filed.
In terms of Rule 49(2)
the notice of appeal had to be delivered to all the parties within 20
days after the date upon which leave
to appeal was granted or within
such longer period as may upon good cause shown be permitted;
(r) During
September 2017 the appellant’s attorneys enquired from
counsel’s chambers as to whether the notice of appeal
had been
drafted, but were advised that counsel was overseas and would only be
back in chambers during the week of 10 October 2017;
(s) On 10 October
2017 the appellant’s attorneys contacted counsel’s
chambers but were informed that he had not yet
reported for work.
(t) On 14 October
2017 the appellant’s attorneys managed to get hold of the
appellant’s counsel, who advised that he
had never received the
brief to prepare the notice of appeal;
(u) On 17 October
2017 the appellant’s attorneys again instructed counsel to
prepare the notice of appeal;
(v) The notice of appeal was
eventually filed on 19 October 2017;
(w) The appellant
thereafter had 60 days within which to apply for a date for the
hearing of the appeal in terms of Rule 49(6)(a);
(x) At the same
time as the application for a date for the hearing of the appeal the
appellant had to file the appeal record in
terms of Rule 49(7)(a);
(y) If the
appellant failed to apply for a date for the hearing of the appeal,
the respondent was entitled to apply for such a date
within ten days
after the expiry of the period of 60 days referred to in Rule
49(6)(a);
(z) The appellant
did not apply for a date for the hearing of an appeal within the
aforesaid period of 60 days;
(aa) On 22 February
2018 the respondent applied for a date for the hearing of the appeal
(this occurred within the period of ten
days prescribed in Rule
49(6)(a);
(bb) On 4 May 2018
the respondent filed the appeal record.
[4]
In its notice of application for
condonation the appellant seeks the following relief:
“
1.
Condoning Appellant’s/Applicant’s failure to prosecute
this appeal within the time frames set by the Rules of this
Honourable Court.
2.
That Appellant’s appeal is reinstated forthwith.
3.
That Appellant is granted leave to prosecute its appeal.
4.
That costs of this application be costs in the appeal.
”
[5]
The application is for condonation for the
late filing of the notice of appeal, as well as for the failure to
apply for a date for
the appeal and for the failure to file a record
of appeal.
[6]
As I understand the provisions of Rule 49,
it is not necessary for the reinstatement of the appeal in this
matter as the appeal
has not lapsed in terms of the provisions of
Rule 49(6)(a), because the respondent duly applied for the set down
of the appeal
within the prescribed period of ten days set out in
Rule 49(6)(a).
[7]
The general requirements for condonation
can be summarized as follows:
(a)
That the delay was not significant;
(b)
That there was a reasonable explanation for the delay;
(c)
That the appeal has reasonable prospects of success (if the
explanation for the delay passed muster);
(d)
That the case is important and that it is in the public interest that
it be resolved.
[1]
[8]
The
Supreme Court of Appeal has held that condonation “
is
not to be had merely for the asking
”
.
[2]
[9]
Factors to be considered in deciding an
application for condonation include:
(a)
The degree of non-compliance;
(b)
The explanation therefor;
(c)
The importance of the case;
(d) A
respondent’s interest in the finality of the judgment of the
Court below;
(e)
The convenience of the Court; and
(f)
The avoidance of unnecessary delay in the administration of
justice.
[3]
[10]
As far as the significance of the
appellant’s failure to prosecute the appeal and the explanation
for the delay tendered by
the appellant are concerned, leave to
appeal was granted on 17 March 2017, whereas the notice of appeal was
only filed on 19 October
2017, some seven months later. This
can hardly be described as an insignificant delay.
[11]
The appellant was obliged to place all
relevant and necessary facts before the Court to argue its case for
condonation. It
appears that no valid external reason
prohibited the appellant from filing its notice of appeal at an
earlier date. This
is particularly relevant to the period from
July 2017, when the appellant’s Johannesburg attorneys
instructed the appellant’s
Mthatha attorneys to proceed with
the appeal, and the ultimate filing of the notice of appeal on 19
October 2017. The appellant
has furthermore advanced no
explanation why it did not apply for a date for the hearing of the
appeal within the prescribed period
of 60 days, or why it did not
file the appeal record. As stated above, the record was filed by the
respondent.
[12]
It is
furthermore incumbent on a party to apply for condonation as soon as
possible after he realizes that he has not complied with
a rule of
court.
[4]
[13]
The appellant bears the onus of showing
good cause for its delay. If no good cause is offered, the
application for condonation
must fail.
[14]
Notably, the
Constitutional Court has held with regard to condonation applications
that,
in a
case where the delay is not a short one, the explanation given must
not only be satisfactory but must also cover the entire
period of the
delay.
[5]
[15]
In
Van der Merwe
the
Supreme Court of Appeal heard an application for condonation where
the applicant filed its papers some five months late.
The
Court referred with approval to the
Uitenhage
matter
[6]
,
where it had stated:
”
One would
have hoped that the many admonitions concerning what is required of
an applicant in a condonation application would be
trite knowledge
among practitioners who are entrusted with the preparation of appeals
to this Court: 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.
”
[7]
[16]
Whilst the applicant in
Van der Merwe
had explained the reasons for its breach of the Court Rules in a
general manner, and had put forward events in a chronological
fashion, the Court was not satisfied that the applicant had
satisfactorily answered to its delay, and reprimanded the applicant
for not providing a sufficiently thorough and detailed explanation of
the circumstances contributing to the delay.
[8]
The Court stated that this lack of a sufficiently thorough
explanation demonstrated an obvious lack of attention to matters
that
plainly called for an explanation, and evinced a failure to fully and
candidly enlighten the Court, as the applicant was obliged
to do. The
Court went on to find that the explanation proffered by the applicant
was woefully inadequate and that it was impossible
to hold that the
delay in bringing this application had been explained in a manner
which was even remotely satisfactory.
[9]
[17]
In the
Beweging
vir Christelike-Volkseie Onderwys
matter, Plasket AJA held as follows (at para [27]):
“
The
delay in this case – 18 months for the filing of a replying
affidavit – is excessively long. No effort was made
to apply
for the condonation of the delay as soon as possible, and no
explanation is given for this failure. Condonation was only
applied
for when the reply was eventually filed, and De Villiers, making a
virtue out of necessity, stated that the filing of the
reply was
slowed down by the fact that a condonation application had to be
drafted as well. The explanation for the delay of 18
months is
unacceptable. Indeed, it is no explanation at all because of its
vagueness and the long periods that remain unexplained.
I consider
the non-observance of the rules to be so flagrant and gross that
there is no need to consider the prospects of success
in the
extension application. There are simply no factors that I can find
that favour the grant of condonation. In the result,
however strong
those prospects of success could be, condonation for the late filing
of the reply must be refused.”
[18]
Dilatoriness in itself is an independent
ground for refusing an application for rescission, as the Supreme
Court of Appeal remarked,
albeit
obiter
,
in
Pitelli v Everton Garden Projects CC
2010 (5) SA 171
(SCA) at paragraph [37
]
:
“…
.in
view of the course that the proceedings against Mr Pitelli and his
company have taken, which in my view has clearly been dilatory
from
beginning to end [t]he court below cannot be faulted for having
refused to rescind its order on any basis, and I consider
there to be
no prospect that it might be reversed on appeal…”
[19]
In
the absence of a satisfactory explanation of the delay, it is
unnecessary for this Court to consider the prospects of success
of
the appeal. In
Van
der Merwe
[10]
,
the Court stated that in cases of flagrant breaches of the Rules of
Court, especially where there is no acceptable explanation
therefor,
the indulgence of condonation may be refused whatever the merits of
the matter. This applies even where the blame
lies solely with
the attorney of the particular party. The Court held that the
breaches of the Rules in that matter were
of such a nature, and the
explanation offered so unacceptable and wanting, that condonation
should be refused, irrespective of
the applicant’s prospects of
success.
[20]
In this matter the dilatoriness of the
appellant in the conduct of the appeal is particularly significant.
No satisfactory
explanation is proffered to explain the delay between
7 March 2017 and 19 October 2017. The explanation that the
appellant
had to obtain the leave of the appellant’s
Johannesburg attorneys to prosecute the appeal, after leave to appeal
had been
granted on 7 March 2017, is unconvincing. After all,
the appellant’s attorneys plainly had the necessary authority
to apply for leave to appeal. Implied in this authority would
presumably have been the authority to prosecute the appeal to
its
final conclusion. The explanation for the further period from
July 2017 to the end of September 2017 is equally unconvincing.
The appellant has failed to provide any evidence of:
(a) the exact date
when counsel was briefed; and
(b) any steps taken
by appellant’s attorney to enquire from counsel what progress
had been made in the matter.
[21]
In addition, the failure on the part of the
appellant to apply for a date for the hearing of the appeal and to
file the appeal record,
remains unexplained to this day.
[22]
I am therefore not convinced that the
appellant has satisfactorily explained the entire period of the
delay. This is therefore,
in my view, a matter where
condonation can be refused without reference to the appellant’s
prospects of success.
[23]
But
even if the prospects of success needed to be considered, I am not
convinced that the appellant has satisfied this requirement
either.
The only reference in the condonation application to prospects of
success is to be found in paragraph 13.2 of the
founding affidavit
where the appellant states that there are prospects of success on
appeal and that another Court may arrive at
a different conclusion
than that reached by the Court
a
quo
.
This singular submission is hardly sufficient to establish the
requirement of a
bona
fide
defence. It was plainly incumbent upon the appellant to set out
the factual or legal basis for its contention as part of
the
application for condonation.
[11]
This has not been done.
[24]
However, and even if this Court were to
have regard to the main application papers to determine the
appellant’s prospects
of success, I am not convinced, for the
reasons that follow, that Pakade J was wrong in confirming the
rule
nisi
.
[25]
The appellant was cited in the main
application on the basis that it was
“
the
functionary in charge for providing electricity at Qanda A/A in the
district of Tsolo in the Eastern Cape Province
”
.
This allegation was not disputed by the appellant. It is not clear if
the respondent was an end user of electricity in terms of
the
Electricity Regulation Act No. 4 of 2006, and if so, who the licensee
responsible was for the distribution of electricity in
the area in
question. I therefore assume, for purposes of this application,
that the appellant has been supplying electricity
directly to the
respondent’s home in terms of some or other service delivery
agreement, details of which, if such an agreement
exists, have not
been placed before us.
[26]
It is not the appellant’s case that
the respondent, or his wife, were in arrears in respect of the
periodic payment of their
electricity bills.
[27]
The crux of the appellant’s defence
was that, in terms of the Occupational Health and Safety Act No. 85
of 1993 (the OHSA),
the appellant was obliged to disconnect the
electricity supply where it posed a danger or threat to the safety of
the occupants
of any structure. This the appellant could do, so
it was contended, without the consent of the occupants or owner of
the
structure in the case of an emergency.
[28]
The OHSA provides for the health and safety
of persons at work and for the health and safety of persons in
connection with the use
of plant and machinery. I am not
convinced that the provisions of the OHSA were, in the circumstances,
applicable to the
facts of this matter. We have furthermore not been
referred to any specific provision of the OHSA, or any other
legislation for
that matter, which would have permitted the appellant
to disconnect the respondent’s electricity supply, in the
circumstances
of this particular matter, without any prior notice, or
any express statutory authority, or court order, or contractual
entitlement,
permitting it to do so.
[29]
The appellant’s contention of an
imminent emergency as a reason for the termination of the
electricity, assuming that this
would have entitled the appellant to
interfere with the electricity supply to the respondent’s home,
is also unconvincing
for the following reasons:
(a)
The appellant became aware of the need for
a deviation of the electricity supply to the respondent’s
premises during June
2014 when the respondent went to the appellant’s
offices in Mthatha to apply for a line deviation.
(b)
During September 2014 the appellant
supplied a quotation for the deviation to the respondent’s
wife. The deviation would cost
R52 791.81.
(c)
The respondent and his wife refused to pay
this sum, contending that the appellant had previously undertaken to
do the deviation
at its own cost. The appellant denies the
existence of such an undertaking.
(d)
The appellant’s case is that it
informed the respondent that there was nothing the appellant could do
regarding the line deviation
until such time as the quoted sum was
paid.
(e)
The electricity supply was then only cut
off on 5 December 2014, some six months after the appellant had
become aware of the need
for a deviation of the electricity supply to
the respondent’s residence.
(f)
The inference is in my view justified that
the true reason for the termination of the electricity supply was not
an emergency situation,
but rather the dispute regarding the payment
of the costs of the deviation.
[30]
During the hearing before Pakade J counsel
for the appellant furthermore conceded that the
rule
nisi
was final in effect and should be
confirmed, but he resisted a cost order against the appellant.
[31]
This
concession was probably correctly made as the remedy sought by the
respondent was in the form of a
mandament
van spolie
.
The essence of the
mandament
van spolie
is that the person who has been deprived of his or her possession
must first be restored to his or her former position before the
merits of the case can be considered.
[12]
[32]
A
mandament
van spolie
is available where a person has been deprived unlawfully of his or
her possession of movables or immovable property, as well as
where a
person has been deprived unlawfully of his or her quasi-possession of
other incorporeal rights.
[13]
A spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law. Its underlying philosophy
is that no one should resort to self-help to obtain or regain
possession. The main purpose of the
mandament
van spolie
is therefore to preserve public order by restraining persons from
taking the law into their own hands and by inducing them to follow
due process. This applies equally if the despoiler is an individual
or a government entity or functionary.
[14]
[33]
The possessory nature of the
mandament
van spolie
gave the respondent the
necessary
locus standi
to bring the application, notwithstanding the fact that he was not
the registered owner of the property in question.
[34]
Our
Courts have on a number of occasions granted a
mandament
van spolie
where the supply of electricity had been terminated.
[15]
[35]
In
essence a
mandament
van spolie
order is final in effect.
[16]
It was contended before us by counsel for the appellant that the form
of the
rule
nisi
reserved
the appellant’s right to contend on the return day that the
termination of the electricity supply was lawful. Even
if there
was in principle merit in this contention, which is not necessary for
us to decide in this matter, I am not convinced
that the appellant
has established any convincing basis, for the reasons set out above
and on the specific facts of this matter,
to justify its decision to
terminate the electricity supply to the respondent’s premises
in the manner in which the appellant
did herein.
[36]
The respondent was, together with his wife
as the registered owner of the property, in undisturbed possession of
the supply of electricity,
which was disconnected without his or her
consent or a court order. As explained above, I am unconvinced that
the appellant acted
lawfully in disconnecting the electricity in the
manner in which it did.
[37]
The reconnection of the electricity supply
to the respondent’s residence on 3 February 2015 restored the
status
quo ante
.
All that remained was the issue of costs. During the hearing before
us counsel for the appellant suggested that each party
should pay
their own costs. However, the respondent was successful in the matter
and was plainly entitled to his costs. Pakade
J, in the
circumstances, correctly confirmed the
rule
nisi
, with costs.
[38]
I wish to make it clear that the outcome of
this appeal does not establish a precedent which would preclude the
appellant from terminating
the supply of electricity in accordance
with any relevant legislative, contractual or other authority to do
so. Insofar as the
appellant has incurred costs to rectify the supply
of electricity to the respondent’s home, its right to institute
an action
to recover these costs in the normal course also remains
unaffected.
[39]
However, on the facts of this particular
matter, a
rule nisi
was
granted. The confirmation of the
rule
nisi
was later conceded by the
appellant. This was, in my view, fatal to the appellant’s case
on the merits.
[40]
In the result the application for
condonation is dismissed, with costs.
The appeal is also dismissed, with
costs.
________________________________
J D HUISAMEN
ACTING JUDGE OF THE HIGH COURT
I agree
________________________________
R E GRIFFITHS
JUDGE OF THE HIGH COURT
I agree
________________________________
I T STRETCH
JUDGE OF THE HIGH COURT
COUNSEL FOR APPELLANT: Mr Matyumza
INSTRUCTED
BY: Mafungo Tshaka Inc.
ATTORNEY FOR RESPONDENT: Mr Notyesi
INSTRUCTED
BY: Mvuzo Notyesi Inc.
HEARD
ON: 06 August 2018
DELIVERED ON: 21
August 2018
[1]
These
requirements are derived from the oft-cited case of
Melane
v Santam Insurance Co Ltd 1962 (4)
SA
531 (A) at 532C-F
[2]
In
Commissioner,
South African Revenue Service v Van der Merwe
2016(1) SA 599 (SCA) [11]
,
where the Supreme Court of Appeal referred to
Uitenhage
Transitional Local Council v South African Revenue Service 200
4
(1) SA 292
(SCA)
para 6
[3]
See Van der
Merwe (
supra
)
[4]
See
Darries
v Sheriff, Magistrate’s Court, Wynberg and Another 1998(3) SA
34 (SCA) at 40 H to 41E, as quoted in Beweging vir
Christelik-
Volkseie Onderwys v Minister of Education and Others
[2012] 2 All SA
462(SCA)
para 26
[5]
Ethekwini
Municipality v Ingonyama Trust
2013
(5) BCLR 497
CC
[6]
See n2
(supra)
[7]
See
Van
der Merwe (supra) para 12
[8]
At paras
[13] – [15]
[9]
At para
[15]
[10]
At para [19]
[11]
See
Darries
(n4 above) at 40H - 41E
[12]
See
LAWSA –
Mandament van Spolie, paragraph 93
[13]
See
LAWSA (supra),
paragraph 94
[14]
See
Ngqukumba v Minister
of Safety and Security and Others
2014 (2) SACR 325
(CC) at [10] and
[11]
[15]
See
Naidoo v Moodley
1982 (4) SA 82
(T)
,
Frowman v Herbmore
Timber and Hardware (Pty) Ltd 1984 (3)
SA 609 (W)
and
Nisenbaum &
Nisenbaum v Express Buildings (Pty) Ltd 1953 (1) SA 246 (W)
[16]
See
Nienaber v Stuckey
1946 AD 1049
at 1053