About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 32
|
|
Metier Mixed Concrete (Pty) Ltd v Daxedward Goose (10145/15) [2016] ZAKZPHC 32 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, PIETERMARITZBURG
CASE
NO. 10145/15
DATE:
01 APRIL 2016
METIER MIXED
CONCRETE (PTY)
LTD
..........................................................................
Applicant
And
DAX EDWARD
GOOSE
.......................................................................................................
Respondent
JUDGMENT
CHETTY J
[1] This is an
application in which the applicant seeks the following declaratory
relief:
[1.1] That the
appeal noted by the respondent, Dax Edward Goose under appeal 9/2012
in the Kwa-Zulu Natal High Court, Pietermaritzburg,
in respect of the
proceedings between the applicant and the respondent in the
Magistrate's Court for the District of Pinetown,
held at Pinetown
under case 9329/2009, has lapsed and is of no force or effect;
[1.2] That the
aforesaid appeal is no bar to the continuation of proceedings under
s
65
of the
Magistrates’ Courts Act 32 of 1944
, or other
execution against the respondent in respect of the Judgement of the
Magistrate’s Court for the district of Pinetown,
held at
Pinetown, under case 9329/2009.
[1.3] That the
respondent is ordered to pay the costs of this application on an
attorney-client scale.
[2] The issues in
this matter can be neatly crystallised into the enquiry as to whether
the appeal noted by the respondent, but
which he has failed to duly
prosecute, has lapsed. The application is opposed by the respondent,
who in essence adopts the stance
that the application is defective
and should be dismissed with costs. The opposition is based entirely
on three technical defences,
each of which are considered in turn
below. The respondent contends that this application should properly
serve before two judges,
when the appeal on the merits is to be
argued on 13 May 2016.
[3] A brief
background to the matter is that the applicant sued the respondent on
the basis of a suretyship agreement, on the basis
of goods sold and
delivered to the principal debtor. The matter proceeded to trial and
judgement was granted on 1 June 2012 in
favour of the applicant in
the amount of R 89 525,17 together with interest from 31 October 2008
to date of final payment, and
costs on an attorney-client scale.
[4] The respondent
duly filed a notice on 28 June 2012 to appeal against the judgement.
On 23 October 2012, the respondent delivered
to the clerk of the
court, Pinetown, an application for the allocation of a date for the
hearing of an appeal. The applicant contends
that this application
for a date for hearing fell outside the 40 day period prescribed in
terms of Rule 50 of the Uniform Rules
of Court which provides that:
'(A)(a) The
appellant shall, within 40 days of noting the appeal, apply to the
registrar in writing and with notice to all other
parties for the
assignment of a date for the hearing of the appeal and shall at the
same time make available to the registrar in
writing his full
residential and postal addresses and the address of his attorney if
he is represented.
(b) In the absence
of such an application by the appellant, the respondent may at any
time before the expiry of the period of 60
days referred to in
sub-rule (1) apply for a date of hearing in like manner.
(c) Upon receipt of
such an application from appellant or respondent, the appeal shall be
deemed to have been duly prosecuted.’
[5] The assignment
of a date for hearing by the registrar is however subject to the
following proviso in subrule 5(a), which states:
‘Provided that
the registrar shall not assign a date of hearing until the provisions
of subrute (7) (a), (b), and (c) have
been duly complied with.’
[6] Subrule (7)(a)
in turn provides:
The applicant shall
simultaneously with the lodging of the application for a date for the
hearing of the appeal referred to in subrule
(4) lodge with the
registrar two copies of the record: Provided that where such an
appeal is to be heard by more than two judges,
the applicant shall,
upon the request of the registrar, lodge a further copy of the record
for each additional judge.’
[7] It is not in
dispute that on 21 May 2015 the respondent delivered the appeal
record comprising three volumes together with an
amended notice of
appeal.
[8] In light of the
above, the applicant contends that the appeal has lapsed in terms of
Rule 50(4)fajt 50(4)(cJ and 50(7)faj read
with Magistrates’
Courts Rule 51 (9) which provides that:
'a party noting an
appeal or a cross-appeal shall prosecute the same within such time as
may be prescribed by rule of the court
of appeal and, in default of
such prosecution, the appeal or cross-appeal shall be deemed to have
lapsed, unless the court of appeal
shall see fit to make an order to
the contrary.’
[9] In Nawa &
others v Marakala & another
2008 (5) SA 275
(BH) Landman J, in
considering a similar application to that before me, held at para 14
that:
The fact that the
registrar has provided a date for the hearing of the appeal, even
though the first and second respondents failed
to comply with their
obligations, does not constitute condonation of their conduct. The
registrar does not enjoy this power1.
[10] In Fedco Cape
(Pty) Ltd v Meyer
1988 (4) SA 207
(E) at 209D it was held that it is
for the court, and not the registrar, to decide whether the copies of
the record on appeal comply
with the Rules. A similar view was
expressed by Cloete J in Francois v Baker; In re: Baker v Francois
(A260/2012)
[2013] ZAWCHC 71
(10 May 2013) with the court noting in
para 5 that where the registrar allocated a date for the hearing of
an appeal despite the
appellant not having complied with Rule 50,
that such steps taken by the register ‘do not remedy these
fundamental defects
since the registrar was not permitted, by virtue
of the provisions of rule 50(5)(a), to have allocated any date at
all.’
[11] The court went
on to add in para 6 that the registrar is not empowered to grant
condonation for non-compliance with the provisions
of Rule 50
.. and that the
inevitable result of the appellant’s disregard for the
provisions of rule 50 is that she has failed to prosecute
the appeal
within the stipulated period of 60 days of the noting thereof as is
required by rule 50(1), and the appeal has accordingly
lapsed.’
[12] The respondent
has not disputed that he applied for the assignment of a date for the
hearing of the appeal outside of the 40
day time period prescribed in
Uniform Rule 4(a). In addition, he filed the record some three years
after the date when he should
have. It is common cause that no
application for condonation has been filed by the respondent to
explain his lateness. In the interim,
the applicant has since 2012,
acting in the belief that the appeal has lapsed, attempted to execute
and realise its judgment against
the respondent. The applicant
brought an application to have the respondent’s immovable
property declared especially executable.
This application was
granted, only for the respondent to bring an application for
rescission, which application has yet to be finalised.
Having been
unsuccessful in proceeding against the immovable property, the
applicant turned its attention to the attachment of
the respondent’s
movable property. This enquiry resulted in a nulla bona return.
Undeterred, the applicant then proceeded
in terms of
s65
of the
Magistrates’ Courts Act.
[13
] The
s65
application was adjourned on several occasions, with the presiding
officers' approach being that the
s65A
proceedings could not continue
while the respondent’s appeal was still pending. It was
suggested to the applicant during
the course of the
s65
proceedings
in May 2015 that the applicant should approach this court for a
declaratory order that the appeal has indeed lapsed.
In the absence
of such an order, it would appear that the applicant's attempts at
execution ground to a halt.
[14] On 24 November
2014 the applicant’s attorneys wrote to the respondent’s
attorney confirming that the
s65
proceedings against the respondent
had been set down for 3 December 2014. The applicant’s
attorneys further advised that
as the proceedings in the court a quo
had not yet been transcribed, the respondent was required to bring a
formal condonation application,
failing which it held instructions to
“apply to court to bar” the respondent, as the applicant
was being severely prejudiced
by the failure of the respondent to
timeously prosecute the appeal. As set out earlier, the respondent
has adopted the approach
that it was not necessary to apply for
condonation, and in an email to the applicant’s attorneys on 11
August 2015, it was
suggested that the applicant reconsider its
application to declare the appeal to have lapsed as this was a matter
only for the
appeal court to determine.
[15] The applicant
has therefore brought the application to declare the appeal to have
lapsed in order that it may proceed with
the
s65
proceedings against
the respondent. The respondent raised three technical defences, the
latter two of which involve an interpretation
of the provisions of
the
Superior Courts Act 10 of 2013
. With regard to the first point in
limine challenging the authority of the applicant’s attorney to
depose to the founding
affidavit in this application, Mr Chetty who
appeared for the respondent conceded that the appropriate manner to
challenge the
authority of the applicant’s attorney would be
that set out in terms of Uniform
Rule 7
(see Ganes <5 another v
Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at 624G-1; Plettenberg Bay
Country Club v Bitou Municipality
[2006] 4 All SA 395
(C) at 398I-J;
FirstRand Bank Ltd v Fillis & another
2010 (6) SA 565
(ECP) at
569C-G). This point was not pursued further by the respondent.
[16] The second and
third points raised by the respondent may be dealt with collectively,
as the arguments in respect of each leg,
overlap. The respondent’s
contention, as set out in his attorney’s email of 11 August
2015 is premised on the argument
that as the appeal has been set down
by the registrar of this court, before a full bench on 13 May 2016,
and that this court constituted
with a single judge has no
jurisdiction to pronounce on the application. As I understood the
argument, the issue of whether an
appeal has lapsed or not, can only
be determined by the appeal court assigned to hear the matter on 16
May 2016. The respondent
relies on the provisions of
s18
of the
Superior Courts Act for
the contention that whilst an appeal is
pending, the operation an execution of the decision which is the
subject matter of the
appeal, remains suspended.
Section 18(1)
provides that:
'Subject to
subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the application
or appeal'.
[17] I am of the
view that this argument is misplaced. Firstly,
s18
is intended to
preserve or keep intact the decision being appealed against, to
prevent a successful party in the court a quo from
acting on the
judgement, and thereby undermining the right of the dissatisfied
party to challenge that decision on appeal. Accordingly,
it is only
in ‘exceptional circumstances’ that a court may allow the
enforcement of a judgment pending the finalisation
of an appeal (see
Incubeta Holdings (Pty) Ltd & another v Ellis & another
2014
(3) SA 189
(GJ) para 22 where Sutherland J considered of what would
constitute ‘exceptionality’). In L’Oreal South
Africa
(Pty) Ltd v Kilpatrick & another
2015 (6) SA 256
(LC) the
court considered that the probability of ‘irreparable harm’
must be established to succeed in such an application
(see also Actom
(Pty) Ltd v Coetzer & another (A269/2015) [2015] ZAGPPHC 548 (31
July 2015)).
[18] Mr Boulle who
appeared on behalf of the applicant, submitted and correctly so in my
view, that
s18
of the
Superior Courts Act is
of no relevance to the
issues germane to this application. The applicant is not seeking to
establish ‘exceptional circumstances’
as contemplated in
s18.
What it has done is to have attempted to execute in terms of the
judgement in the court a quo in the belief that the
respondent’s
appeal had lapsed because of his failure to prosecute the appeal
within certain prescribed time periods. I am
not persuaded by the
respondent’s argument based on his interpretation of
s18
of the
Superior Courts Act.
[19
] I now turn to
the last point, that an application to declare an appeal to have
lapsed must properly serve before a full bench,
and most desirably,
before the court duly constituted to hear the merits of the appeal.
In this regard Mr Chetty submitted that
the decision in Nawa &
others (supra) was wrong, and threw his weight behind the ratio in
Motsamai v Read & another
1961 (1) SA 173
(O) where Smit AJP held
at 174D-E:
'It is much better
for all parties concerned to let these matters, which are really all
part of the proceedings on appeal, come
before the Full Court of
appeal rather than before a single Judge, who may by his refusal to
grant relief, finally decide the issue
between the parties. The Full
Court can then, especially where there is argument on the merits,
combine the hearing of the appeal
with that of the application and so
save costs. This, of course, does not apply to the case where a
single Judge sits during vacation
as he then exercises all the
powers, jurisdiction and authority of a Court of such Division.'
[20] Landman J in
Nawa however relied on the dictum in Lipschitz NO v Saambou-
Nasionale Bouvereniging
1979 (1) SA 527
(T) where Eloff JP answered
the question of whether an application to declare an appeal to have
lapsed could be brought before
a single judge. The court held at
529A-D that:
'Section 13(1)^ of
the Supreme Court Act 59 of 1959 provides (subject to a proviso not
relevant for present purposes) that the Court
of a Provincial or
Local Division shall, when sitting as a Court of first instance for
the hearing of any civil matter, be constituted
before a single Judge
of the Division concerned. A Court entertaining an application under
Rule 49(1) is in my view sitting as
a Court of first instance. It was
however contended that a practice exists whereby applications for
condonation of procedural shortcomings
in appeals are heard by a
Court comprised of as many Judges as would constitute the Court of
appeal. It is correct that the existence
of such a practice was
recognised in cases such as Meyer v Dowson & Dobson Ltd
1967 (4)
SA 628
(T) at 628F, but I think that the scope of this rule of
practice is limited to applications where the prospects of success
have
to be canvassed. It is understandable that in such cases the
adjudication on the prospects of success should be undertaken by a
Court comprised of as many members as will ordinarily hear the
appeal. That consideration does not, however, necessarily enter
into
an application under Rule 49(1).'
[21] When the matter
came before me, I brought to the attention of both parties unreported
decision of Nicholls J in MCG Industries
(Pty) Ltd v Chespak (Pty)
Ltd (17527/10) [2013] ZAGPPHC 306 (22 October 2013) in which the
applicant (MCG) contended that the appeal
filed by the respondent
(Chespak) had lapsed as it had failed to apply for a hearing date for
the appeal within 60 days of the
filing of its notice of appeal as
required in terms of Rule 49(6)faJ. It also failed to file the record
of appeal within the extended
40 day time period provided for in Rule
49(7)(rc0. Counsel for the applicant submitted that the issues in MCG
Industries were distinguishable
from those in the present
application; in as much as the appellant had stated under oath in
that case that it intended to apply
for condonation. In the matter
before me, the respondent adopted the view that if condonation had to
be applied for, this would
only be for the consideration of the
appeal court and not before a single judge. In addition, MCG
Industries was concerned with
the provisions of Rule 49(7)(c0 as
opposed to the provisions of Rule 50(1) which are applicable in the
present application. As
opposed to only seeking an order that the
respondent’s application for a hearing date had lapsed, MCG
perhaps erroneously
sought order that the appeal itself had lapsed.
It conflated the application contemplated in Rule 49(7) of an
application for a
date for the appeal to be heard, and the appeal
itself. In dealing with the issue of whether it was appropriate for a
single judge
to hear an application to declare an appeal to have
lapsed, Nicholls J said the following at para [21]:
This brings me to
the question of whether this court sitting as a motion court with a
single judge is the appropriate forum to hear
the application for the
lapsing of an appeal or whether this is a determination that should
be made by the appeal court consisting
of three judges. It is settled
law that when the prospects of success have to be canvassed, then the
correct forum is the bench
that will hear the appeal. However where
an application does not involve a consideration of the merits, this
is not the sole domain
of the appeal court and a single motion court
judge would have the competence and jurisdiction to entertain such an
application.'
(footnote omitted)
[22] In MCG
Industries the court took into account that the respondent had
indicated that an application for condonation for the
late filing of
the record would be made at the hearing of the appeal. As any
application for condonation would of necessity involve
a
consideration of the merits, the court noted it concluded at para
[25] that:
‘In my view it
is the appeal court when it hears the application for condonation
that should determine whether the appeal
has lapsed taking into
consideration all the factors. This will include the impact of
Chespak’s failure to file the record
in the extended period
allowed for in terms of Rule 49(7), as well as the prospects of
success on appeal.’
[23] In contrast, in
the matter before me, the respondent states the following in para 10
of his answering affidavit:
‘The
respondent can in terms of law, if it believes that it has not
complied with time limits, bring a condonation application
to the
full bench of this division to be heard at the same time as the
appeal and it is for the full bench to decide that issue
and not this
court.’
[24] In furtherance
of his approach set out above, the respondent relied on Rule 51(9) of
the Magistrates’ Courts Rules, and
in particular the words
‘unless the court of appeal shall see fit to make an order to
the contrary.’ I am in agreement
with the applicant’s
counsel that this argument is misplaced in that a common sense
interpretation of Rule 51(9) must mean
that the failure to prosecute
an appeal or cross-appeal in accordance with the prescribed time
periods, results in such appeal
or cross-appeal lapsing. It is only
the appeal court that can resuscitate a lapsed appeal. While only the
appeal court can hear
an application to resuscitate an appeal that
has lapsed, it does not follow that only an appeal court can declare
an appeal to
have lapsed.
[25] The enquiry as
to whether an application to declare an appeal to have lapsed may be
heard by a single judge, may be resolved
by having regard to the
framework of the
Superior Courts Act. Section
14(1 )(a) of the Act
provides that: ‘a court of a Division must be constituted
before a single judge when sitting as a court
of first instance for
the hearing of any civil matter...’.Conversely, s14(3) provides
that ‘a court of a Division must
be constituted before two
judges for the hearing of any civil or criminal appeal.’ In
determining whether the application
to declare the appeal to have
lapsed must serve before a court of first instance comprising two
judges, one may have regard to
the principles of res judicata, and in
particular the enquiry of whether such an application has already
served before, and been
finally determined, by another court. If the
answer is no, then it is clear that the application must serve before
a court of first
instance, that being a court comprised of a single
judge, unless directed otherwise by the Judge President or his/her
Deputy. Conversely,
if a court comprising a single judge is not the
court of first instance to hear an application for the lapsing of an
appeal, is
not clear from the provisions of the
Superior Courts Act
which
other court would be competent to hear the matter.
[26] I am
accordingly of the view that the provisions of the
Superior Courts
Act are
clear that a court of first instance is a court comprising a
single judge, and that an application, such as that before me to
declare
an appeal to have lapsed, is indeed competent to serve before
a single judge.
[27] The applicant
considers that the respondent is ‘unapologetic’ in
seeking to delay proceedings. Only at the hearing
of this application
did Mr Chetty indicate that the respondent intended to bring an
application for condonation, and that he would
ask for this
application to be heard on the same day set down for the hearing the
appeal. If this is indeed the position, it begs
the question as to
why the respondent steadfastly refused to give prior any indication
that he intended to apply for condonation,
and why he decided only at
the hearing of this application to make known his intention. Quite
correctly, a court sitting as a single
judge cannot hear an
application for condonation in relation to non-compliance with time
periods for the prosecution of an appeal.
As stated above, such an
application would invariably involve an assessment of the merits, in
that if there are no prospects of
success on appeal, there would be
little point in granting the application for condonation. That is, no
application for condonation
for the late filing of the record. The
applicant on the other hand is seeking a declaration confirming what
has already occurred
as a matter of law, that the appeal by the
respondent lapsed when he failed to timeously apply for an appeal
date, as well as failing
to file the appeal record. The declaration
sought is a confirmation ex lege.
[28] The fact that
the respondent has now indicated that he intends to apply for
condonation should not constitute a barrier to
this court pronouncing
on whether the appeal, as a matter of law, has lapsed. If this court
declares the appeal to have lapsed,
it is open to the respondent to
bring a substantive application for the appeal to be reinstated, and
at the same time, bring an
application for condonation for his
failure to comply with the prescribed time periods. The appeal court
would be in the best position
to deal with all of those matters at
one sitting.
[29] Lastly, apart
from the declaration sought that the appeal has lapsed, the applicant
further seeks an order that it is entitled
to continue with
proceedings under
s65
of the
Magistrates’ Courts Act, or
other
execution against the respondent in respect of its judgement secured
in the Magistrate’s Court, for the district of
Pinetown. I
decline to make any order in this regard, as the applicant is at
liberty to pursue any avenues open as a consequence
of the relief
granted below. Alternatively, it would be superfluous to grant the
order prayed for in 1.2 of the Notice of Motion.
In the absence of an
order that the appeal has lapsed, it could be argued that to forge
ahead with the
section 65
proceedings in the Magistrate’s court
would infringe on the provisions of
section 18
of the
Superior Courts
Act. No argument
was advanced on this aspect and it is not necessary
say anything more in that regard.
[31] As regards
costs, the applicant seeks costs against the respondent on
attorney-client scale. In light of the intransigent approach
adopted
by the respondent to the applicant’s invitation to bring an
application for condonation, which Mr Boulle indicated
would have
probably resulted in this application being resolved, I am satisfied
that this is a suitable case where the respondent
should be liable
for costs on an attorney-client scale.
[32] In the result I
make the following order:
a. The appeal noted
by the respondent Dax Edward Goose in respect of the proceedings
between the applicant and the respondent in
the Magistrate’s
Court for the District of Pinetown, under case number 9329/2009, has
lapsed.
b. The respondent is
to pay the costs of this application on an attorney-client
M R CHETTY
Appearances:
For the Applicant
Adv, Boulle
Instructed by:
Morris Fuller Walden William,
Westville Redfern
& Findlay Attorneys,
Pietermaritzburg
For the
Respondent: Mr. T Chetty of Theyagaraj Chetty Attorneys
Instructed by
Care of Cajee Setsubie & Chetty
Pietermaritzburg
Date of Hearing:
18 February 2016
Date of Judgment
01 April 2016