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[2013] ZAFSHC 194
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Van Zyl v Old Mutual Life Assurance Company (A133/2013) [2013] ZAFSHC 194 (31 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA.FREE STATE
DIVISION,
BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal No. : A133/2013
In
the appeal between:-
C
C VAN
ZYL Appellant
And
OLD MUTUAL LIFE ASSURANCE
COMPANY
Respondent
CORAM: MOCUMIE,
J et LEKALE, J
HEARD ON:
21
OCTOBER 2013
DELIVERED
ON:
31 OCTOBER 2013
JUDGMENT
MOCUMIE, J
[1] This is an appeal against the whole
judgment of the magistrate court, Bloemfontein. The respondent
(plaintiff in the court a
quo) instituted action against the
appellant (defendant in the court a quo) for payment of an amount of
R64 204.89 based on the
conditio indebiti, alleging that it had paid
the proceeds of four life assurance policies incorrectly to the
appellant, whilst
it was under a bona fide, reasonable but mistaken
impression that such payment were due to the appellant whereas there
was no legal
or natural obligation to make such payments to the
appellant.
Points in limine
[2] The respondent raised two points in limine.
The first was the late lodging and prosecution of the appeal in
breach of Rule 50(7)(c)
of the Uniform Rules of Court
[1]
.
The second, the late filing of documents by the appellant.
[3] The appellant filed its Notice of Appeal on
22 March 2012 and allegedly experienced difficulties in procuring the
mechanical
recording of the proceedings in the court a quo. The
respondent took it upon itself to address this problem. On 25
September 2012
it provided the appellant with the record of the trial
proceedings which were recorded by the respondent’s instructing
attorney.
Due to some technical problems the appellant experienced,
again, the respondent came to the appellant’s rescue and had
the
transcription done and made available to him. The appellant’s
attorney of record confirmed receipt of the transcribed record
on 24
January 2013.Despite being in possesion of the transcribed record
since January 2013, the appellant only delivered his notice
in terms
of R50(4) on 14 June 2013.Way outside the prescribed period of ninety
days.
[4] In its application for
condonation for the late filing of the appeal, the appellant failed
to give any clear and plausible explanation
why it took so long to
process the appeal except what Mr Louw proffered from the bar. In his
submission Mr Louw was constrained
to concede that the appellant
failed to set the process in motion within the prescribed period. He
cited at least one reason that
contributed to this failure on the
appellant’s part. i.e. that the magistrate who presided over
the matter had lost the record.
He, however, could not explain with
clarity what transpired after the respondent had provided the
appellant with a transcribed
record. To that extent he conceded that
what he submitted in Court, including the explanation of the
inordinate delay after the
respondent came to the appellant’s
rescue, was not encapsulated in the affidavit accompanying the
application for condonation
as is the norm in applications of this
nature. It is clear from the plethora of communication between the
appellant and the respondent
that the submission that the delay was
caused by the record getting lost was far from the truth.
[5] The Supreme Court of Appeal
recently reiterated the legal principles applicable in an application
for condonation in Detenqe
Holdings Ptv Ltd vs Southern Sphere Mining
and Development Company Ltd & Others (619/12) [2013] ZSCA 5 (11
March 2013) at para
[11] as follows:
“
Factors
which usually weigh with this court in considering an application for
condonation include the degree of noncompliance,
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 Me Kenzie
1969 (3) SA
360
(A) at 362F-G.)”
[6] Apart from not disputing that the appeal
was prosecuted out of time, there is simply no tangible explanation
why the appellant
took a year and a few months since the application
was launched to prosecute the appeal. The appellant did not even deem
it fit
to supplement its application for condonation application of
17 July 2012 to explain exactly what had happened since the said
application
was launched.
[7] In our discretion, however, we considered
that the interests of justice and all the parties dictated that we
proceed to hear
the second leg of this application and bring the
matter to finality. We thereafter proceeded to hear the second leg of
the application
for condonation which is whether there were prospects
of success if the appeal proceeded.
[8] Secondly, the appellant filed documents
which Mr Louw submitted were relevant to the determination of this
appeal, late. i.e.
long after heads of arguments had been filed. Mr
Van Aswegen, on behalf of the respondent submitted that the admission
of such
documents was highly prejudicial to the respondent as not
only had the respondent based its case on what was the appellant’s
case during the trial in the court a quo but also what was his case
after lodging the appeal until he introduced those documents.
Mr Louw
was constrained to agree that the documents could safely not be
admitted as these were actually only relevant during the
preparations
for this appeal. We deemed it fair not to admit those documents to
the extent that they would have been prejudicial
to the respondent
and because they were really not relevant in this appeal as Mr Louw
was constrained to acknowledge.
[9] Having disposed of the two points in limine
the question remained whether there were any prospects of success in
this appeal.
The appellant alleged that the respondent’s claim
prescribed on 23 February 2009 on the basis that the respondent was
contacted
and informed by a Ms Van Biljon, an insurance broker who
testified on behalf of the appellant during the trial, that during
October
2006 one of the policies was still on the appellant’s
profile after all policies had been surrendered. Therefore the
respondent
was warned then and should have been diligent in acquiring
knowledge about this anomaly and taken steps to reverse it.
Prospects of success.
[10] In addressing this second leg we
deliberately did not go into the legal principles applicable to the
defence of prescription
to avoid going in depth into the merits of
this appeal. Suffice to state the following. The respondent alleged
that it only became
aware of the undue payments on 5 January 2009
when Mr Christiaan Christoffel Van Zyl of Ellisras, the correct owner
of the policies,
called to enquire why he was not receiving any
communication on his policies from the respondent. Upon
investigation, the respondent
discovered that the policies were paid
out to Mr Coenraad Christoffel Van Zyl of Bloemfontein, the
appellant. The process of instituting
action to recoup the money from
him was then set in motion. Summons was thereafter issued during
2010.
[11]
The evidence that was led during the trial showed clearly that the
respondent could not reasonably have had the knowledge a
reasonable
man could have had at the time the appellant alleged it could have.
The fact that Ms Van Biljon called the respondent’s
Call Centre
to enquire or inform the respondent about this anomaly could not
reasonably have raised the respondent’s eyebrows
so as to send
it enquiring after the matter. No evidence was led to the effect that
the respondent itself was made aware. Or that
this information was
recorded anywhere or for that matter that the appellant or the very
same Ms Van Biljon made a follow up on
her report or call to confirm
that either the information has been updated in that the policies
have been removed from the appellant’s
portfolio or that the
respondent as a company or one of its managers was ma'de aware of
this. Instead when this information came
up on Ms Van Biljon’s
computer she just erased it without any further ado.
[12]
It is clear that if the real policy holder did not raise a query
during January 2009 the respondent would not have picked up
this
anomaly. The reasons the respondent provided for this anomaly are
reasonable and would never be found otherwise by any court.
The
appellant’s turn around in this appeal that the respondent was
expected to have exercised more diligence, set up some
form of back
up system to pick up such anomalies was not the case before the trial
court and can simply not fly in the appeal.
In any event the
appellant is barred from raising a new issue in an appeal.
[13] The superficial manner in which the
application was prepared and the lack of attention to matters which
obviously called for
an explanation, taken together with the
undoubted prejudice that the respondent will suffer and the non-
existent prospects of
success in this appeal renders it impossible
the grant of condonation. The appeal ought to fail on that basis
alone.
[14] Mr Van Aswegen requested an order of costs
against the appellant including travelling and subsistence costs for
the respondent’s
Cape Town attorney. There exists no cause in
equity for such a special cost order because the respondent had a
Bloemfontein correspondent
attorney at all material
times.
[15]
In the result, the following order is granted.
ORDER
1. The application for condonation is
dismissed with costs. Costs to include costs of the lapsed appeal.
2. The applicant for condonation is
ordered to pay the costs incurred by the respondent in opposing the
lapsed appeal.
B.C.
MOCUMIE, J
I concur.
L.J.
LEKALE , J
On behalf
of appellant:
Adv M C
Louw
Instructed by:
Stander and Partners
BLOEMFONTEIN
On behalf
of respondent:
Adv
W A van
Aswegen
Instructed by:
MacGregor Stanford Kruger c/o Phatshoane Henney Inc
BLOEMFONTEIN
[1]
Rule 50(4) of the Uniform Rules of Court provide:
“(4) (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 subrule (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.
[Subrule
(4) substituted by GN R2164 of 2 October 1987, by GN R2642 of 27
November 1987 and by
GN R185 of 2 February 1990.]