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[2013] ZAGPPHC 306
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MCG Industries (Pty) Ltd v Chespak (Pty) Ltd (17527/10) [2013] ZAGPPHC 306; 2013 BIP 435 (GNP) (22 October 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA [NORTH GAUTENG HIGH COURT, PRETORIA]
CASE
NO: 17527/10
DATE:22/10/2013
In
the matter between:
MCG
INDUSTRIES (PROPRIETARY)
LIMITED
......................................
Applicant
and
CHESPAK
(PROPRIETARY)
LIMITED
..................................................
Respondent
HEARD
ON: 30 SEPTEMBER 2013
JUDGMENT
HANDED DOWN: 18 OCTOBER 2013
JUDGMENT
NICHOLLS
J,
[1]
This is an application for a declaratory order that the appeal filed
by the appellant (“Chespak") has lapsed, alternatively
for
an order dismissing the appeal. The application is made by the
respondent in the appeal (“MCG”) in terms of rule
49 of
the Uniform Rules of Court (the “Rules”).
[2]
The basis on which MCG seeks this relief is, firstly, that Chespak
failed to file an application for a hearing date for the
appeal
within 60 days of filing its notice of appeal as required by Rule
49(6)(a). Secondly that Chespak failed to file the record
of appeal
within the extended 40 day time period provided in Rule 49(7)(d).
[3]
On 25 March 2010 MCG launched an application seeking to interdict
Chespak from infringing MCG’s registered design by making,
using, importing and/or disposing of any product falling within the
scope of the registered design. The registered design was in
respect
of a bottle carrier utilised for storage, transportation and delivery
of plastic soft drink bottles. The application was
heard almost a
year later on 7 February 2011. Zondo J (as he was then) handed down
judgment on 30 September 2011 in favour of MCG,
but without giving
reasons therefore. Reasons were provided during October 2011. On 24
October 2011 Chespak filed and served its
application for leave to
appeal.
[4]
In the interim Zondo J was appointed to an acting position in the
Constitutional Court on 1 November 2011 with a permanent appointment
from 13 August 2012. On 10 February 2012 leave was granted to the
full bench of this division. Chespak served and filed its notice
of
appeal on 28 February 2012.
[5]
Thereafter Chespak was required to pay security for its costs of the
appeal. This was conceded but the quantum was disputed.
It appears
that a written undertaking was not provided although the amount of
R200 000 was placed into the trust account of Chespak’s
attorneys who have since provided the undertaking. Although raised in
the papers this was not argued as one of the grounds for
the appeal
lapsing.
[6]
Chespak applied for hearing date in terms of Rule 49(6)(a) on 29 May
2012. Because it was not accompanied by copies of the record
as
required by Rule 49(6)(a), Chespak were obliged to furnish an
affidavit in terms of Rule 49(7)9a)(ii) explaining the failure
to
lodge the record and indicating that condonation would be sought at
the hearing of the appeal. The application for a hearing
date was
accepted by the Registrar.
[7]
The affidavit filed by Willem Du Preez (“Du Preez”), a
candidate attorney in the employ of the attorneys of Chespak,
stated
that the delay in obtaining the record was due to the fact that
security could only be provided “found the second
week of April
2012”. Once security was furnished, he said he proceeded on the
15th of May to try and obtain a transcription
of the judgment of the
hearing for leave to appeal and the proceedings.
[8]
On 12 December 2012 an “Amended written application in terms of
Rule 49(6)(a)” was filed with the final appeal record.
This was
accompanied by a further affidavit from Du Preez. In this affidavit
he attributes the delay in preparation of the record
to the
disappearance of the court file and the appointment of Zondo J to
preside in the Constitutional Court.
[9]
Du Preez states that the transcripts of the original judgment and
judgment in the leave to appeal were completed on 2 July 2012
after
which they were sent to van der Merwe DJP for confirmation on behalf
of Zondo J "and finally delivered on the 19th July
2012”.
He goes on to say he was not aware of the requirement that only the
transcripts but also the duplicate court file
had to be endorsed
before the necessary orders could be drafted. It was only at a later
stage that he presented the file to the
clerk of Van der Merwe DJP,
after erroneously believing that only a clerk associated with Zondo J
was competent to endorse the
court file.
[10]
As a result of the above, the endorsed court file was only presented
to the typists on 16 October and “finally delivered
on the 19th
and 22nd October 2012”. The record was perused on 19 November
2012 when missing pages were identified. The final
record was
therefore presented only on 12 December 2012, some 10 months after
the leave to appeal was granted. MCG launched the
present application
on 21 December 2012. The date allocated for the appeal is 23 March
2014.
[11]
Rule 49(6)(a) and 49(7)(d) read as follows:
Rule
49(6)(a):-
(a)
Within sixty days after delivery of a notice of appeal, an appellant
shall make written application to the registrar of the
division where
the appeal is to be heard for a date for the hearing of such appeal
and shall at the same time furnish him with
his full residential
address and the name and address of every other party to the appeal
and if the appellant fails to do so a
respondent may within ten days
after the expiry of the said period of sixty days, as in the case of
the appellant, apply for the
set down of the appeal or cross-appeal
which he may have noted. If no such application is made by either
party the appeal and cross-appeal
shall be deemed to have lapsed:
Provided that a respondent shall have the right to apply for an order
for his wasted costs.
Rule
49(7):-
(a)
At the same time as the application for a date for the hearing of an
appeal in terms of subrule (6)(a) of this rule the appellant
shall
file with the registrar three copies of the record on appeal and
shall furnish two copies to the respondent. The registrar
shall
further be provided with a complete index and copies of all papers,
documents and exhibits in the case, except formal and
immaterial
documents: Provided that such omissions shall be referred to in the
said index. If the necessary copies of the record
are not ready at
that stage, the registrar may accept an application for a date of
hearing without the necessary copies if-
(i)
….;or
(ii)
failing such agreement, the appellant delivers an application
together with an affidavit in which the reasons for his omission
to
hand in the copies of the record in time are set out and in which is
indicated that an application for condonation of the omission
will be
made at the hearing of the appeal.
(b)....
(c)
After delivery of the copies of the record, the registrar of the
court that is to hear the appeal or cross-appeal shall assign
a date
for the hearing of the appeal or for the application for condonation
and appeal, as the case may be, and shall set the appeal
down for
hearing on the said date and shall give the parties at least twenty
days' notice in writing of the date so assigned.
(d)
If the party who applied for a date for the hearing of the appeal
neglects or fails to file or deliver the said copies of the
record
within 40 days after the acceptance by the registrar of the
application for a date of hearing in terms of subrule (7)(a)
the
other party may approach the court for an order that the application
has lapsed.
[12]
MCG’s case is that Chespak failed to file an application for
the hearing date of the appeal within 60 days of filing
its notice of
appeal as required in rule 49(6) and failed to file the record of the
appeal within the extended 40 day time period
provided in Rule
49(7)(d). In respect of the former the appeal has automatically
lapsed. In respect of the latter the application
for the hearing date
of the appeal has lap 3d, and as a consequence thereof the appeal
itself has lapsed.
[13]
MCG contends that on this basis alone its application should be
granted and any explanations that Chespak may have for the
delays is
irrelevant. It is only in an application for re-instatement that the
explanations for the delays become relevant, and
only an appeal court
can re-instate a lapsed appeal. However, the submission is that the
rules are clear that if the 40 day deadline
provided for in 49(/)(d)
is missed then an order may be granted declaring that the application
for an appeal date, and thus the
appeal, has lapsed.
[14]
Chespak’s counsel agrees that the appeal automatically lapses
under the deeming provisions of rule 49(6)(a) if an application
for
an appeal date is not timeously filed, but argues that the same is
not applicable in terms of Rule 49(7)(d). Here the court
has a
discretion to grant an order that “the application’' has
lapsed. The application referred to is not the appeal
but the
application for a date for the hearing of the appeal. Therefore the
only order that is competent for this court to make
is not that the
appeal has lapsed but that the application for the hearing of a court
date has lapsed.
[15]
Although conceding that the application in terms of rule 49(6)(a) was
filed two days late, the Chespak argues that MCG did
not object to
the late filing as an irregular step and did not raise this point in
its founding affidavit to this application.
In fact MCG went on to
take further steps in the prosecution of the appeal, including
evincing an intention to apply for condonation.
It is therefore not
open to the applicant to contend that the appeal is deemed to have
lapsed at this juncture but only at the
hearing of the appeal.
[16]
This view was confirmed in Strouthos v Shear
1
where it was held that where no application has been brought in terms
of Rule 30, the appeal will have to be proceeded with and
a
respondent will have to move for the appeal to be struck from the
roll for want of compliance with the rule as was done in Boland
Konstruksle Maatskappy (Edms) Bpk v Petlen Properties (Edms) Bpk
1974
(4) SA 291
(C).
[17]
Both parties accept that the Registrar was obliged to accept the
application for a date for the hearing in terms of rule 49(6)(a)
and
has no discretion to refuse.
2
The question is then whether in terms of 49(7) the lapsing of the
application for a hearing date axiomatically means the lapsing
of the
appeal.
[18]
On an ordinary reading of Rule 49(7){a)(d) the reference to “the
application” is clearly a reference to the application
for a
date of hearing for the appeal. This view finds support in Jyoti
Structures Africa (Pty) Ltd v Krb Electrical Engineers/Masana
Mavuthani Electrical and Plumbing Services (Pty) Ltd t/a Krb Masana
3
where the court held at paragraph 15:-
“
The
concept of 'lapsing' appears twice in rule 49. It appears in the
context of rule 49(6)(a), which provides, inter alia, that
an appeal
ar. J cross-appeal shall be deemed to have lapsed if neither the
appellant nor the respondent made application for the
appeal to be
heard within the specified time periods. It also appears in the
context of rule 49(7)(d), which allows one party to
approach the
court for an order that the application for the hearing of an appeal
has lapsed in the absence of delivery of copies
of the record within
the specified period. Note that this applies to the application for
the hearing, not the appeal itself. The
rule having made specific
provision for lapsing in these respects, there seems little room for
finding that other failures would
also lead to lapsing of the appeal.
There are other remedies which are readily available, such as
striking the appeal off the roll.
That is an appropriate remedy
where, for instance, no power of attorney was filed (Aymac CC and
Another v Widgerow
2009 (6) SA 433
(W) at para 6), or there was a
failure to file a complete appeal record timeously (Van der Riet v
Rheeder
1965 (3) SA 712
(0); Dinath v Breedt
1966 (3) SA 712
(T);
Kanderssen (Pty) Ltd \/ Bowman NO
1979 (4) SA 296
(T)). ln Boland
Konstruksie Maatskappy (Edms) Bpk v Petlen Properties (Edms) Bpk
1974
(4) SA 291
(C) the appeal was struck off the roll where, inter alia,
no security had been furnished in terms of the then rule 49(12) (the
equivalent of the present rule 49(13)). However it is not necessary
that I resolve this issue in the light of the conclusion that
I come
to. Suffice it to say that I do not believe that a party which
complains of the failure by the other party to furnish good
and
adequate security may demand an order that the appeal has lapsed.”
(my underlining)
[19]
What MCG has done is to conflate the application for an appeal date
with an application for the appeal itself. The application’
referred to throughout in rule 49(6) and 49(7) is for a hearing date.
Therefore MCG’s reliance on Rule 49(7) to declare the
appeal to
have lapsed is misplaced. It may well be that the application for a
trial date has lapsed but this is not the issue for
determination.
[20]
It should be further noted that insofar as it may be argued that
inadequate security is grounds for declaring an appeal to
have
lapsed, in the Jyoti judgment this was dismissed. The other cases and
available remedies referred to in Jyoti, such as the
striking of the
appeal for the failure to file a complete appeal record timeously or
the failure to file a power of attorney were
exercised by the court
of appeal, not a single judge.
[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.
4
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.
5
[22]
MCG contends that it not necessary to traverse the merits of the
appeal and therefore this court is competent to hear the application
for the lapsing of the appeal. A claim based on a failure to
prosecute an appeal has no bearing on the prospect of succeeding in
the final appeal.
[23]
I am not convincec that this is correct. In both the affidavits filed
with the applications for a trial date, Du Preez stated
that an
application for condonation for the late filing of the record would
be made at the hearing of the appeal. All that is required
in Rule
49(7) is an “indication that an application for condonation of
the omission is made at the hearing of the appealAny
application for
condonation invariably involves a consideration of the merits. If
there are no prospects of success there is little
point in granting
condonation.
[24]
As was stated in Motsamai v Read and Another
6
which was quoted with approval in Nawa and Others v Marakala and
Another
7
“
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. ”
[25]
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.
[26]
In respect of MCG’s alternative claim for the dismissal of the
appeal, this is not the domain of a single judge. The
dismissal of an
appeal is only warranted once the merits have been taken in to
account, not on procedural issues alone. This is
the preserve of the
appeal court.
[27]
In the result, I make the following order: The application is
dismissed with costs.
C NICHOLLS
JUDGE
OF THE HIGH COURT
Attorneys
for the applicant: D M KISCH INC.
Suite
3 Parkland Building 223
Bronkhorst
Street
Nieuw
Muckleneuk, PRETORIA
TEL:
011 324 300
REF:
Z8532ZA00/AE/MV/si
ADV.
G MARRIOTT
HAHN & HAHN INC
Attorneys
for the respondent
222
Richard Street Hatfield,
PRETORIA
REF: PV/GLG0273
TELI
012 342 1774
ADV.
A J BESTER
1
Strouthos
v Shear
2003 (4) SA 137
(T) at 141
2
Fedco
Cape (Pty) Ltd v Meyer
1988 (4) 207 (E) at 209;
Unimark
Distributors (Pty) Ltd v Erf 94 Silverton (Pty) Ltd
2003 (1) SA 204
(T)
3
2011 (3) SA 231
(GSJ)
4
Lipschitz
NO v Saambou-Nasionale Bouvereniging
1979 (1) SA 527
(T);
Meyer
v Dowson and Dobson Ltd
1967 (4) SA 628
(T)
5
Nawa
and Others v Marakala and Another
2008 (5) SA 275
(BH);
Jyoti
supra
6
1961
(1) SA 173(0)
7
2008 (5) SA 275
(BH)