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[2014] ZAFSHC 100
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Thahameso Ntswanatsatsi Thusanang Taxi Association and Another v Qwaqwa United Taxi Association (5204/2013) [2014] ZAFSHC 100 (26 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 5204/2013
In
the matter between:
THAHAMESO
NTSWANATSATSI
THUSANANG
......................................................
First
Applicant
TAXI
ASSOCIATION
SIPHIWE
ISAAC
SITHOLE
......................................................................................
Second Applicant
and
QWAQWA
UNITED TAXI
ASSOCIATION
........................................................................
Respondent
CORAM:
LEKALE, J
HEARD
ON:
13 JUNE 2014
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
26 JUNE 2014
[1]
This is essentially an application for leave to appeal an order
handed down in an urgent application between the parties on
the 19
th
December 2013. The application is out of time and, as such, the
applicant should and effectively does,
ante omnia
, apply for
condonation of the delay involved. There is no appearance for
the respondent party although it was served.
[2]
On the 19
th
December 2013 the applicants moved this court, on an urgent basis,
for interdictory relief against the respondent. After
hearing
the motion, which was opposed, I dismissed the same with costs and
pointed out that reasons would be furnished on request
by either
party.
[3]
On the 17
th
February 2014 the applicants filed a notice in terms of Rule 49(1)(c)
of Uniform Rules of Court requesting reasons. On the
18
th
February 2014 I caused a letter to be directed to the applicants
advising them that their request did not comply with the provisions
of the relevant rule and, as such, could not be acceded to.
[4]
On the 7
th
April 2014 the applicants filed an application for leave to appeal
incorporating, if necessary, an application for condonation
as a
contingency measure. In the affidavits filed in support of the
application, the applicants maintain that when the motion
was
dismissed the court indicated that “
reasons
to be provided later
”. The
deponent further points out that, from the 6
th
January 2014 to the 20
th
January 2014, he attempted in vain to contact the court to establish
if the reasons were ready. On the 28
th
January 2014 he learned from my clerk that I had been on recess until
the 27
th
January 2014 and that I was busy preparing reasons in the matter.
On the 13
th
February 2014 his office established from my clerk that the reasons
were ready and that same as well as the file had been taken
back to
the general office. They, however, found the file without the
reasons and were informed by my clerk, on enquiry,
that the relevant
file was mistaken for another file and that no reasons would be
provided because no request for reasons had been
made in terms of
Rule 49 of Uniform Rules of Court. On the 14
th
February 2014 his office requested a copy of the transcriptions of
the judgment and order from the service provider but learned,
towards
the end of February 2014, that no recording of the judgment and order
could be found. That his office has been advised
by their
senior counsel that the application for leave to appeal is, in fact,
not out of time and as such condonation is not necessary.
[5]
The transcribed record has since been filed and it is clear therefrom
that on the 19
th
December 2013 I ruled that “
reasons
to be furnished on request by either party
”.
[6]
The leave to appeal scheme created by Rule 49 envisages that reasons
for judgment would be available by the time leave to appeal
is
sought. This much is apparent from the
proviso
to Rule 49(1)(b) which limits the time for making an application for
leave to appeal to 15 days after the date on which the reasons
or the
full reasons for the order are given.
[7]
Written reasons are indispensable when a matter serves on appeal.
As the court in
Botes and Another v
Nedbank Ltd
1983 (3) SA 27
(A) at
p. 28 pointed out:
“
It
is elementary that litigants are ordinarily entitled to reasons for a
judicial decision following upon a hearing, and, when a
judgment is
appealed, written reasons are indispensable. Failure to supply them
will usually be a grave lapse of duty, a breach
of litigants' rights,
and an impediment to the appeal process.
”
(Quoted
with approval in
Strategic Liquor
Services v Mvumbi NO and Others
2010 (2) SA 92
(CC) at par. [15]).
[8]
In the instant matter no written reasons for the judgment have been
prepared and given. Such a state of affairs constitutes
a
serious impediment to the appeal process. The applicants only
seek condonation, if necessary, in respect of the 15 day
period
relating to application for leave to appeal as well as such leave.
In my view no application for leave to appeal may
be entertained and
granted in the circumstances of the present matter where the
applicant is out of time for requesting reasons.
Written
reasons serve as a jurisdictional fact for an application for leave
to appeal.
[9]
As the applicants have correctly and effectively been advised the
application for leave to appeal herein is not late and condonation
is, thus, not necessary insofar as the 15 day period for applying for
leave only starts to run after the reasons or full reasons
for
judgment have been furnished. What was late in this matter was an
application for reasons. To entertain such an application
for
leave at this stage would allow and encourage parties to circumvent
the provisions of Rule 49(1) (c) with regard to the 10
day time limit
for requesting reasons. A party, in the position of the
applicants in this matter, would be able to apply
for leave to appeal
without first having applied for reasons in the hope that by so doing
he would, in effect, be forcing the court’s
hand to give
reasons after the prescribed time period simply because such reasons
are indispensible to the appeal process.
[10]
The application for leave to appeal is, thus, premature for want of
compliance with the provisions of Rule 49(1) (c) and, as
Mr Maritz
for the applicants correctly submits, where the court is not prepared
to bypass the rules, falls to be dismissed.
ORDER
[11]
The application for leave to appeal is struck off the roll.
______________
L.
J. LEKALE, J
On behalf of
applicants:
Adv N Maritz
Instructed
by:
Savage
Jooste & Adams Inc
PRETORIA
c/o
AP Pretorius & Partners
BLOEMFONTEIN
On
behalf of respondent: No appearance