Chairperson of the North West Gambling Board & Another v Sun International (SA) Limited (1214/2019) [2021] ZASCA 176 (14 December 2021)

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[2021] ZASCA 176
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Chairperson of the North West Gambling Board & Another v Sun International (SA) Limited (1214/2019) [2021] ZASCA 176 (14 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1214/2019
In the matter
between:
The
Chairperson Of The North West
Gambling Board
First Appellant
The North West
Gambling Board
Second Appellant
And
Sun
International (SA) Limited
Respondent
Neutral
citation:
The Chairperson of the North
West Gambling Board & Another v Sun International (SA) Limited
(1214/2019)
[2021] ZASCA 176
(14 December 2021)
Coram:
VAN DER MERWE, SCHIPPERS and MBATHA JJA and
PHATSHOANE and WEINER AJJA
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives via email, publication
on the Supreme Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 14 December
2021.
Summary:
Appeal – condonation for late filing of appeal record and
reinstatement of appeal and condonation for late filing of heads of
argument
– prospects of success assumed – whether good cause
shown – dilatory conduct of the appellants – failure to explain
blatant
disregard of rules and inordinate delays – condonation and
reinstatement refused.
ORDER
On
appeal from:
The North West
Division of the High Court (Gutta J sitting as a court of first
instance)
1
The application for condonation for the late filing of the record of
appeal
is dismissed, with no order as to costs.
2
The application for condonation for the late filing of the
appellants’ heads
of argument is dismissed, with no order as to
costs.
3
The main matter is struck from the roll with costs.
JUDGMENT
Weiner
AJA (Van Der Merwe, Schippers and Mbatha JJA and Phatshoane AJA
concurring)
Introduction
[1]
After hearing counsel for the appellants on 5 November 2021,
we made
the order set out above and indicated that reasons for the order
would follow. These are the reasons.
[2]
The appellants,
the
Chairperson of the North West Gambling Board and the North West
Gambling Board
(herein collectively referred to as the
Board) and the respondent, Sun International (SA) Limited (herein
referred to as SISA), were
in dispute over whether Free Play, which
was a credit given by SISA to its most valuable customers, ought to
be included or excluded
from the calculation of gross gaming revenue.
This issue has a bearing on the calculation of the correct amount of
levy which a casino
was obliged to pay for the benefit of the
provincial revenue fund. SISA’s view was that such credits ought to
be excluded, whilst
the Board’s view was that they should be
included. The North West High Court (Gutta AJ) found in favour of
SISA. The Board brought
this appeal with the leave of the court a
quo.
[3]
Before this Court were two applications for condonation brought
by
the Board. They related, firstly, to its failure to file the record
of appeal timeously, and secondly, to the late filing of the
heads of
argument, practice note and certificate (the heads of argument), in
terms of Rule 10 of this Court’s Rules (the Rules),
six months
after they were due. It was common cause that the appeal had lapsed
upon the failure of the Board to file the record on
the extended date
of 14 April 2020. The Board thus sought condonation in respect of
both breaches of the Rules, as well as the reinstatement
of its
appeal. SISA initially opposed the applications for condonation and
the reinstatement of the appeal. It withdrew its opposition
shortly
before the hearing. This did not, of course, relieve the Board of the
duty to make out a proper case for condonation and
reinstatement.
The applicable Rules
[4]
In terms of Rule 8(1) of this Court’s Rules, an
appellant is required to lodge with this Court’s Registrar (the
Registrar) six
copies of the record of the proceedings in the court
below within three months of the lodging of the notice of appeal. In
terms of
Rule 8(2), this period may be extended either by the written
agreement of the parties or by the Registrar following a request by
the appellant, with notice of the request being given to the other
parties. Rule 8(3) provides that if the record is not lodged within
the period prescribed by Rule 8(1), or an extended period in terms of
Rule 8(2), the appeal shall lapse.
[5]
Rule 10 provides that heads of argument must be filed within
six
weeks from the lodging of the record; if the appellant fails to lodge
heads of argument within the prescribed period or within
the extended
period, the appeal shall lapse.
The late filing of
the appeal record
[6]
In order to properly assess the Board’s
submissions regarding the delays and its failure to comply with the
Rules, it was necessary
to traverse the chronology of events in this
matter. The Board’s attorney, Ms Makhetha, of Maponya Inc,
Bloemfontein, deposed t
o the Board’s application for
condonation.
[7]
The judgment of Gutta AJ was delivered on 25 May 2018. The
application for leave to
appeal should have been filed by 15 June
2018. The Board did not file such application by that date, nor did
they seek an extension.
The application for leave to appeal was only
lodged on 12 July 2018, with an application for condonation. The
condonation application
and application for leave to appeal were set
down for hearing on 31 May 2019. However, on that day, the Board
brought an application
seeking a postponement of the application for
leave to appeal, which was granted, with an order that the Board was
to file a replying
affidavit by 17 June 2019 and heads of argument by
15 July 2019. The replying affidavit was filed a day late, and the
heads of argument
were filed three days late.
[8]
On 25 October 2019, condonation and leave to appeal were granted by
the court a quo.
The Board served its notice of appeal on 13 November
2019. On 14 November 2019, the Registrar sent a letter to the Board,
stating
that the record was to be lodged by 13 March 2020.
[9]
Mr Baloyi, the instructing attorney at Maponya Inc in Mahikeng, had
arranged to courier
the record to Bloemfontein on 11 March 2020. The
documents were, however, only received on 13 March 2020. Ms Makhetha
stated in a
letter to the Registrar that due to this delay, the
attorneys were unable to bind and deliver the record to the court
timeously.
She, however, stated that the record had been served on
SISA’s attorney.
[1]
However, on 13 March 2020, when she went to the court with copies of
the record, they were not in order, as several documents were
missing. Mr Baloyi addressed a letter to SISA requesting an extension
until 27 March 2020. On 14 March 2020, he also sought a 30-day
extension from the Registrar. On 16 March 2020, the Registrar granted
an extension until 14 April 2020 for the record to be filed,
failing
which the appeal would lapse.
[10]     In
the application for condonation, Ms Makhetha stated that the Covid-19
lockdown, which was announced
on 23 March 2020 and commenced on 26
March 2020, made it impossible to travel over provincial boundaries.
This explanation was unconvincing,
as Ms Makhetha was based in
Bloemfontein and did not have to travel over any provincial
boundaries. The Board and its attorney did
nothing to enquire whether
or not the record could be filed, despite the lockdown; they simply
disobeyed the Rules, without seeking
a further extension or
communicating with SISA or the Registrar. The record was not filed on
14 April 2020. No correspondence in
this regard was addressed to the
Registrar or SISA’s attorneys either before or after this date.
[11]     On
23 April 2020, SISA’s attorney enquired from Mr Baloyi whether the
record had been filed, as ten
days had lapsed from the extended date
upon which the record was to be filed, with no correspondence from
the Board. In response,
on 24 April 2020, Mr Baloyi explained that it
was impossible to file the record because of the lockdown, which had
commenced on 23
March 2020.
[12]     On
29 April 2020, SISA’s attorneys addressed a letter to the Registrar
requesting confirmation that
the appeal had lapsed as the record had
not been filed. The Registrar confirmed, to the attorneys, that no
communication in respect
of the filing of the record had been
received and that the Registrar’s office had been open for the
duration of the lockdown to
receive all documents in hard copy or
electronically. The appeal had accordingly lapsed.
[13]
Level 4 lockdown was announced on 3 May 2020. On the following day,
the record was filed, but there was
no application for condonation.
The Board’s attorneys stated that an application for condonation in
respect of the filing of the
record would be filed before 21 May 2020
and it did so. SISA opposed the application and the opposing
affidavit was filed on 22 June
2020.
Late filing of the heads of
argument
[14]     The
Board, for some reason, stated that the heads of argument were due to
be filed on 3 July 2020. But
the record had finally been filed on 4
May 2020, and the heads of argument were thus due six weeks after the
record was filed, being
15 June 2020.  In any event, both 15
June 2020 and 3 July 2020 came and went – no heads of argument were
filed. No extension
was applied for. In September 2020, Ms Makhetha
was informed by the Registrar that the appeal had lapsed on 14 April
2020. Ms Makhetha
did not respond.
[15]
Other than the filing of the record and the application for
condonation for its late filing, on 4 May
2020, nothing further was
heard from Ms Makhetha, Mr Baloyi or the Board, until 21 December
2020 – some seven months later –
when the heads of argument and
the further application for condonation were filed. SISA filed an
answering affidavit to the second
condonation application on 16
February 2021.
[16]     In
an attempt to explain this disregard of the Rules, and its failure to
communicate its intentions (despite
the appeal having lapsed), Ms
Makhetha stated that the reason for not further prosecuting the
appeal at the time was that a Full
Court of the Western Cape had
pronounced on a similar matter against the
Western
Cape Gambling and Racing Board
on 29 April 2020. There were
also judgments handed down in similar matters in the Eastern Cape and
Northern Cape (22 September 2017),
which found against the respective
Boards.
[17]     The
Board, it was said, wanted to discuss these judgments and the way
forward with the other Boards involved.
No detail was given of these
discussions. The Court was not informed what the discussions
concerned, who took part in the discussions,
and the result of such
discussions. No confirmatory affidavits were tendered by the
participants to these discussions. It, however,
appeared from the
application that a decision had been made (on an undisclosed date)
that the Western Cape and Eastern Cape Boards
would also apply for
leave to appeal against the judgments granted against them. It was
contemplated that if leave was granted in
the Western Cape matter,
that case and the present one would be consolidated.
[2]
[18]
Ms Makhetha stated that she had monitored the progress of the Western
Cape matter, but decided to hold
the present matter in abeyance. For
five months, the Board did nothing. It did not inform the Registrar
or SISA of its unilateral
decision to hold the matter in abeyance. It
did not ask for an extension based upon this reasoning that there
should be a consolidation
of the matters in this Court. However, as
the judgment had still not been handed down in the application for
leave to appeal in the
Western Cape matter by 20 November 2020, the
Board instructed Ms Makhetha that the heads of argument and other
documents required
for the appeal should be filed. There was no
explanation as to precisely what Ms Makhetha or the Board did, in
these five months,
other than to decide on or about 20 November that
the heads of argument be filed.
[19]
The unilateral decision by the Board to place this matter on hold
whilst it was deliberating what to
do, without communicating with
SISA or the Registrar, was unacceptable. To further aggravate its
conduct, despite being informed
by the Registrar in September 2020
that the appeal had lapsed on 14 April 2020, the Board did not even
consider requesting an extension
or seeking condonation for the late
filing of the heads of argument. As stated above, the heads of
argument and application for condonation
were only filed on 21
December 2020. Thus, another unexplained delay of a month occurred.
This cavalier attitude cannot be countenanced.
Applicable
legal principles
[20]
Rule 12 makes provision for applications for condonation in the event
of non-compliance with the Rules.
It is trite that in applications
for condonation and reinstatement
:
‘
(a)
The applicant must provide a proper explanation of the causes of the
delay and explain each
of the periods of delay.
[3]
(b)
It is not sufficient for an applicant to set out a ‘number of
generalised causes without
any attempt to relate them to the
time-frame of its default or to enlighten the court as to the
materiality and effectiveness of
any steps taken by the Board’s
legal representatives to achieve compliance with the Rules at the
earliest reasonable opportunity.
[4]
(c)
The court has a discretion which the applicant must show should be
exercised in its
favour.’
[21]     In
order to obtain condonation, several factors come into play. As
Ponnan JA stated in
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
,
[5]
such factors:
‘…
include
the degree of non-compliance, the explanation
therefor,
the importance of the case, a respondent’s interest in the finality
of the judgment of the court below, the convenience of this
court and
the avoidance of unnecessary delay in the administration of justice
(per Holmes JA in
Federated
Employers Fire & General Insurance Co Ltd & another v
McKenzie
1969 (3) SA
360
(A) at 362F-G).’
[22]
In the present case, the major delay can be laid at the door of the
Board itself. And it is in any event
responsible for the delay caused
by its attorneys. In
Saloojee
and Another, NNO v Minister of Community Development
,
[6]
after considering the explanation given for the delay, and concluding
that it was not even ‘remotely satisfactory’, Steyn CJ
held:
‘
I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the
blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the results of his attorney's lack of diligence
or the
insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance of the Rules
of this
Court.’
[7]
[23]
In
SA
Express Ltd v Bagport (Pty) Ltd
,
[8]
Plasket JA referred to various authorities dealing with this issue.
He cited Plewman JA’s comments in
Darries
v Sheriff, Magistrate’s Court, Wynberg and Another
,
[9]
where it was stated:
‘
Condonation
of the non-observance of the Rules of this Court is not a mere
formality. In all cases, some acceptable explanation, not
only of,
for example, the delay in noting an appeal. . . . must be given. Nor
should it simply be assumed that, where non-compliance
was due
entirely to the neglect of the appellant’s attorney, condonation
will be granted. In applications of this sort the applicant’s
prospects of success are in general an important though not decisive
consideration.  When application is made for condonation
it is
advisable that the petition should set forth briefly and succinctly
such essential information as may enable the Court to assess
the
appellant’s prospects of success. But appellant’s prospect of
success is but one of the factors relevant to the exercise
of the
Court’s discretion, unless the cumulative effect of the other
relevant factors in the case is such as to render the application
for
condonation obviously unworthy of consideration. Where non-observance
of the Rules has been flagrant and gross an application
for
condonation should not be granted, whatever the prospects of success
might be.’
[24]
The Board contended that the prospects of success in the appeal were
good, and therefore, the delays
occasioned in the filing of the
record and heads of argument should be condoned, and the appeal
should be re-instated. We were prepared
to accept that the Board had
prospects of success with the appeal. However, as set out above,
condonation has been refused even in
circumstances where the
prospects of success might be good, but the explanation for the delay
was unsatisfactory and displayed a
flagrant disregard for the Rules.
[25]
In
Madinda
v Minister of Safety and Security
,
[10]
this Court, in dealing with the balance required when considering the
explanation for the delay and the prospects of success, stated
that:
‘
.
. . In addition, that the merits are shown to be strong or weak may
colour an applicant’s explanation for conduct which bears
on the
delay: an applicant with an overwhelming case is hardly likely to be
careless in pursuing his or her interest, while one with
little hope
of success can easily be understood to drag his or her heels. . .
.’
[11]
[26]
This
statement applies equally in the present case. The Board had simply
been careless and lackadaisical in its approach to this appeal.
Assuming that the Board had good prospects on appeal, the following
dictum applied: ‘Where non-observance of the Rules has been
flagrant and gross an application for condonation should not be
granted, whatever the prospects of success might be’.
[12]
Delay
in applying for condonation
[27]
The
Board’s dilatory conduct was exacerbated by its failure to apply
for condonation as soon as reasonably possible. It waited until
21
December 2020 to file such an application. This again demonstrated
the brazen disregard of the Rules. In
Mulaudzi
v Old Mutual Life Assurance Co (South Africa) Ltd
,
[13]
this Court dealt with the issue as follows:
‘
What
calls for an explanation is not only the delay in the timeous
prosecution of the appeal, but also the delay in seeking condonation.
An appellant should, whenever he realises that he has not complied
with a rule of this court, apply for condonation without delay.
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. . .
.’
[28]
Similarly, in
SA
Express
,
[14]
Plasket JA, confirmed that ‘[
a]n
appellant should, whenever he realises that he has not complied with
a Rule of Court apply for condonation as soon as possible.
’
[29]
In view of SISA’s withdrawal of its opposition to these
applications for condonation, it was not necessary
to deal with the
manner in which the delays may have prejudiced it. However, there
were other issues to consider, as stated by this
Court in
Commissioner,
South African Revenue Service v Van der Merwe
:
[15]
‘
.
. . Not only is the conduct of the applicant prejudicial to a party
in the position of SARS – the applicant first failed to lodge
a
notice of appeal in the High Court in time and then repeated that
remissness before this court - but to tolerate the type of conduct
encountered here would be prejudicial to the administration of
justice, the integrity of any appeal process and the functioning of
our highest courts of appeal.’
Conclusion
[30]
Having accepted that there might be prospects of success, the
question remained whether the Board had
provided a convincing and
adequate explanation for  its non-compliance with this Court’s
Rules. This must be answered in the
negative.
[31]
The Board blatantly failed to comply with the Rules of Court in
virtually every instance. It was late
in seeking leave to appeal from
the High Court. It was late in seeking a postponement of the
application for leave to appeal. It
was late in filing its heads of
argument and replying affidavit in the application for condonation
before the High Court. It was
two months late in filing the record of
appeal in this Court, and the record was still incomplete. It was,
furthermore, six months
late in filing its heads of argument and
application for condonation in this Court. Its explanations for each
of these delays were
wholly unsatisfactory. The Board displayed a
blatant disregard for the Rules of this Court and the administration
of justice. The
Board’s lackadaisical way in dealing with this
matter had to be dealt with in a manner that demonstrated  that
condonation
was not just for the asking. The Board flagrantly
breached the Rules in such a manner and on so many occasions that
this Court could
not grant condonation and reinstatement of the
appeal.
[32]
For these reasons we granted the order set out at the commencement of
this judgment.
S E WEINER
ACTING
JUDGE OF APPEAL
Appearances:
For
appellant:
J De Waal SC
Instructed
by:
Maponya Inc., Bloemfontein
For
respondent:
A Cockrell SC (with him N Ferreira)
Instructed
by:
Cliffe Dekker Hofmeyr Inc., Johannesburg
Webbers Attorneys, Bloemfontein
[1]
It
appears that the record was only served on SISA’s attorneys on 19
May 2020. This discrepancy is not explained in the affidavit.
[2]
Leave to
appeal was granted in the Western Cape Matter on 22 October 2021.
An
application by the Western Cape Gambling and Racing Board to
intervene in the present appeal was filed in this Court on 29
October
2021. Such application was dealt with at the hearing of this
matter and dismissed by this Court.
[3]
SA
Express Ltd v Bagport (Pty) Ltd
[2020] ZASCA 13; 2020 (5) SA 404 (SCA);
[2020]
JOL 47309 (SCA) para 34;
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
amicus curiae)
[2007]
ZACC 24
;
2008
(2) SA 472
(CC);
2008 (4) BCLR 442 (CC) para 22;
Laerskool
Generaal Hendrik Schoeman v Bastian Financial Services (Pty)
Ltd
[2009]
ZACC 12
;
2009 (10) BCLR 1040 (CC);
[2009]
JOL 23546 (CC);
2012
(2) SA 637
(CC)
para 15.
[4]
Uitenhage Transitional
Local Council v South African Revenue Service
[2003]
4 All SA 37
(SCA);
[2003] JOL 11450
(SCA);
2004 (1) SA 292
(SCA)
para 7.
[5]
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[2013]
ZASCA 5
;
[2013]
JOL 30158
(SCA);
[2013] 2 All SA 251
(SCA)
para
11.
[6]
S
aloojee
and Another,
NNO
v Minister of Community Development
1965
(2) SA 135 (A); [1965] 1 All SA 521 (A).
[7]
Ibid
at 140H and
141B-C.
[8]
SA Express Ltd v
Bagport (Pty) Ltd
(note 3 above)
[9]
Darries v Sheriff,
Magistrate’s Court, Wynberg
and Another
1998 (3) SA 34
(SCA) at 40I-41E, cited in
SA
Express
(note 3
above) para 14. (References omitted.)
[10]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA).
[11]
Ibid para 12.
[12]
Darries
(note
9 above).
[13]
Mulaudzi v Old Mutual
Life Assurance Co (South Africa) Ltd and Others
[2017] ZASCA 88
;
[2017] 3 All SA 520
(SCA);
2017 (6) SA 90
(SCA)
para 26. (References omitted.)
[14]
SA Express
(note
3 above)  para 14.
[15]
Commissioner, South
African Revenue Service v Van der Merwe
[2015] ZASCA 86
;
2016 (1) SA 599
(SCA);
[2015] 3 All SA 387
(SCA)
para 18. (References omitted.)