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[2016] ZAGPPHC 1204
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Laubscher and Another v Bezuidenhout (A889/15) [2016] ZAGPPHC 1204 (15 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: A889/15
15/11/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In the matter between:
CHRISTINE
ELIZABETH LAUBSCHER
1
st
APPELLANT
MARIA
PETRONELLA COETZER
2
nd
APPELLANT
and
TANYA
BEZUIDENHOUT
RESPONDENT
JUDGMENT
MPHAHLELE,
J:
[1.]
The appellants noted an appeal against the judgment of Magistrate Deo
Saran which was delivered on 30 July 2015.
[2.]
The appellants sought condonation for the late filing of the appeal
record on 04 December 2015 and opposed the respondent's
application
for a postponement of the hearing of the appeal. According to the
appellants the delay was caused by the confusion
at the offices of
the transcribers, namely iAfrica Transcriptions. Apparently when the
appellants' attorneys instructed the transcribers
to prepare the
record, the instruction was allocated to a wrong client which
resulted in the appellants being provided with incorrect
invoices and
an incorrect record. After various requests and correspondence, the
appellants received the correct complete quote
on 26 November 2015.
[3.]
The appellants submitted that it is patently evident that at all
material times they intended to prosecute the appeal and that
the
delay in obtaining the court record lay at the hands of the
transcribers.
[4.]
The appellants aver that the transcribers informed them that, due to
the nature and duration of the trial in the court a
quo,
it
would take a while to transcribe the record. For fear of the appeal
lapsing, the appellants compiled a record comprising of the
pleadings, notices and discovered documents from the court a
quo
as well as the record of the incorrect proceedings initially
provided to them by the transcribers. These documents, together with
an affidavit stating the reasons for the filing of an incorrect
record, were provided to the Registrar on 04 December 2015. The
transcribers only informed the appellants on 04 February 2016 that
the correct record was prepared and ready for collection.
[5.]
The respondent, in a letter dated 19 February 2016, requested a copy
of the court record from the appellants. The respondent,
amongst
others, indicated that, should she not receive the copy of the court
record by 22 February 2016, she would lodge an objection
against the
appeal process. Two copies of the court record were thereafter made
available to the respondent on 20 February 2016.
These records were
also filed with the registrar.
[6.]
The appellants submitted that the respondent has not been prejudiced
in her preparation for the appeal and had tacitly condoned
the late
filing of the record, moreover she has not raised any prejudice. In
her application for postponement of the hearing of
the appeal, the
respondent submitted that the complete record of the proceedings has
yet to be served on her. According to her,
on 22 March 2016 the
appellants served four bundles of documents consisting of an
incomplete record on her.
[7.]
The respondent submitted further that the attorney for the appellants
was negligent in filing the incorrect record at court,
thereby
probably causing the appeal to lapse and had failed to provide a
satisfactory explanation for his conduct. The respondent
maintains
that, even if the complete correct record was delivered on 20
February 2016, there would still have been insufficient
time to
properly prepare for the appeal as the record was voluminous.
[8.]
The appellants maintain that the respondent displays an obvious
disdain for the relevant rules of this court. The appellants
aver
that the four bundles of documents alleged to have been served on the
respondent on 22 March 2016 are in fact the record filed
on 04
December 2015 and that they never served any documents on the
respondent on 22 March 2016. The complete record was collected
by one
Mr Joel Mashilo, the driver for the respondent's attorneys. Mr
Mashilo signed for and collected the record from the offices
of the
appellants' attorneys.
[9.]
The appellants submitted that the respondent never indicated to them
in any manner whatsoever that only a portion of the record
was
received. The respondent further sent a letter to the appellants on
11 May 2016 indicating that she failed to file her heads
of argument
due to her attorney of record being sick and tendered costs for the
postponement. The appellants only agreed to the
postponement if the
costs of both their junior and senior counsel were tendered. The
appellants maintain that both counsel have
been briefed on this
appeal from its inception and have done extensive preparation as
evident from the signed practice note and
the heads of argument.
[10.]
Taking into account that the respondent only delivered its
application for postponement two days before the hearing of the
appeal, the appellants maintain that the respondent was seeking an
indulgence due to its blatant disregard for the rules of this
court.
The respondent failed to timeously oppose the appellants' application
for condonation for the late filing of the court record
nor is there
any application seeking condonation of same. Therefore, the
appellants maintain there is no opposition to the condonation
application before court. The respondent submitted that she could not
have filed her heads of argument timeously due to the failure
of the
appellants to provide her with the correct complete record of the
trial proceedings.
[11.]
The appellants maintain that they have properly prosecuted the
appeal. There is however no evidence as to when requests were
made to
the transcribers for the copy of the court record. The first
quotation was issued on 02 April 2015 and the second one on
04
November 2015. The first quotation was issued one month before the
commencement of the trial. Both quotations were issued for
the
attention of the attorneys for the respondent. The respondent
conceded that they indeed applied for the small portion of the
trial
proceedings. This supports the version by the appellants that the
confusion emanated from the offices of the transcribers.
[12.]
The respondent maintains that the delay in noting the appeal was not
caused by the offices of the transcribers, but it was
gross
negligence on the part of the attorneys for the appellants.
Therefore, the respondent maintains the notice of appeal (served
on
28 August and filed on 31 August 2015) has lapsed. The respondent in
both her papers in support of the application for postponement
of the
hearing of the appeal as well as in opposition of the appellants'
condonation application failed to raise the issue of the
late filing
of the appeal.
[13.]
The appellants failed to state the date on which the request was made
for the quotation issued by the transcribers on 26 November
2015 in
relation to the correct record of the trial proceedings. I
nevertheless noted in the aforementioned quotation that reference
is
made to the appellant's letter dated 23 November 2015. Further the
appellants failed to mention the date on which payment was
made in
settlement of the transcription costs as set out in the transcriber's
quotation dated 26 November 2015. All we know is
that the appellants
were only advised on 04 February 2016 that the record was ready for
collection.
[14.]
There is no doubt the appellants experienced challenges in obtaining
the correct record from the transcribers. The appellants
have
demonstrated the desire to prosecute the appeal. Out of frustration
and in order to prevent the lapsing of the appeal the
appellants not
only filed the affidavit explaining its predicament but also attached
the incorrect record obtained from the transcribers.
[15.]
In her letter dated 19 February 2016 the respondent indicated that
she will only lodge an objection against the appeal process
should
the appellants fail to provide her with a copy of the court record on
Monday, 22 February 2016. Further the respondent,
in her answering
affidavit has admitted that the appellants made available two copies
of the record on 20 February 2016 and also
admitted that she had the
correct record. The respondent raised for the first time the issue of
the lapsing of the appeal on the
date of the hearing of the matter. I
find this argument by the respondent to be opportunistic.
[16.]
The prosecution of civil appeals from the magistrates' court is
regulated by Uniform Rule 50. Rule 50(1) provides that an
appeal
shall be prosecuted within 60 days after the noting of such appeal,
and unless so prosecuted it shall be deemed to have
lapsed. Rule
50(4)(a) requires the appellant to 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. The respondent may apply to the registrar
for the assignment
of a date for the hearing of the appeal under certain circumstances
(see Rule 50(4)(b)). Upon receipt of such
an application from the
appellant or the respondent (as the case may be) the appeal shall be
deemed to have been duly prosecuted
(see Rule 50(4)(c)). In terms of
special rules applying in the Gauteng Division and the Gauteng Local
Division the periods of 60
and 40 days are extended to 14 weeks and
12 weeks respectively.
[17.]
Rule 50(7)(a) provides
inter alia
that the applicant for the
date for hearing of the appeal shall simultaneously with the lodging
of the application for a date for
the hearing of the appeal lodge
with the registrar two copies of the record. Rule 50(7)(c)
inter
alia
stipulates that the record shall contain a correct and
complete copy of the pleadings, evidence and all documents necessary
for
the hearing of the appeal.
[18.]
In prayer 1 the appellants seek condonation for the filing of the
incorrect record on 04 December 2015. I fail to understand
the
purpose of this application. It is common cause that the record that
was filed on 04 December 2015 is incorrect, irrelevant
to the appeal
and will not add any value. A court cannot justify an order condoning
the filing of irrelevant and unnecessary documents.
[19.]
It is clear from the papers that the appellants took reasonable steps
to comply with the requirements of Rule 50 but could
not file the
correct record timeously due to the transcription problems alluded to
above. Notwithstanding that, the appellants
are required by the court
rules to apply for condonation of the late filing of the correct
record. The court is not in a position
to grant such an order in the
absence of a proper application. The respondent's application for a
postponement has become moot.
In
the end, the following order is made:
[20.]
The application for condonation of the filing of the incorrect record
is refused with costs.
SS
MPHALELE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree
EM
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Counsel
for Appellants: Adv. J Roux; Adv. M Fourie
Instructed
by: ML SCHOEMAN ATTORNEYS
Counsel
for Respondent: Adv. M Coetsee
Instructed
by: COUZYN HERTZOG & HORAK
Date
heard: 17 MAY 2016
Date
of judgment: