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[2009] ZAGPPHC 291
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KP Seabi v Sasfin Bank Ltd (A90/2007) [2009] ZAGPPHC 291 (24 February 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO:
A90/2007
DATE:
2009-02-24
In
the matter between
KP
SEABI T/A SEABIT &
ASSOCIATES Appellant
And
SASFIN
BANK
LIMITED Respondent
JUDGMENT
SOUTHWOOD.
J
:
The appellant appealed against a judgment granted 20 against him in
the Magistrate's Court and applied for a date for the hearing
of the
appeal. On 25 August 2008 the Registrar addressed a notice to the
attorneys of both parties to advise them that the matter
had been
enrolled for hearing on 24
lh
February 2009. The notice states clearly and unambiguously that the
attorneys are informed that the appeal has been placed on the
roll
for hearing on 24 February 2009 and the appellant's attorney was
requested to give notice of the set down to the respondent
and the
Clerk of the Court as required by Rule 50(5).
The
appellant's attorney did not give notice of set down to the
respondent's attorney in terms of the rule. It also appears that
when
applying for the allocation of a date for hearing, the appellant
failed to deliver the necessary copies of the appeal record
to the
respondent's attorney. The matter was allocated to two judges and as
known to the members of the court the respondent's
attorney addressed
letters to the appellant and his attorney from 20 January 2009 to 20
February 2009 in 10 connection with the
prosecution of the appeal and
the hearing of this matter on 24
th
February 2009. The
respondent's attorney requested that the appellant's attorney furnish
copies of the record and requested the
appellant's heads of argument.
Quite clearly the respondent's attorney did not wish to incur wasted
costs if the matter was not
proceeding.
On
16 February 2009 the presiding judge requested his Registrar to make
enquiries from the appellant's attorneys as to whether heads
of
argument had been filed or not and what the appellant intended to do
about filing heads of argument. The relevant letter reads
as follows:
"The
Presiding Judge, Judge BR Southwood has requested me to address you
as follows:
(1)
On 16 February 2009 Judge Southwood requested me to establish whether
the appellant in the above matter had filed heads of argument
as
there were no heads of argument with the record and the respondent
had filed heads of argument on 10 February 2009. (The date
stamp on
the respondent’s heads of argument indicates that the
respondent served its heads of argument on you in February
2009.);
(2)
I confirm that on 16 February 2009 at about 09:00 I telephoned you to
enquire about the whereabouts of the appellants heads
of argument;
(3)
I confirm that you advised me as follows:
(i)
In August 2008 the Registrar notified you that the appeal had been
enrolled for hearing on Tuesday 24 February 2009;
(ii)
You have not delivered a notice of set down and the appeal is
therefore not on the roll;
(iii)
Because the appeal is not on the roll you have not delivered heads of
argument;
(iv)
You do not intend to file heads of argument for the hearing on 24
February 2009;
(4)
I confirm that I shall send a copy of this letter to the respondent's
attorney of record."
Neither
the appellant nor the appellant's attorney responded to this letter.
No heads of argument have been filed for the appellant
and
there is no appearance for the appellant today.
The
respondent's counsel has appeared and addressed the court on the
basis of the correspondence which his attorney addressed to
the
appellant's attorney between January and February and he has pointed
out that despite this correspondence there has been no
reaction from
the appellant or his attorney. It is also noteworthy that neither the
appellant nor his attorney saw fit to indicate
to the court in a
letter or by means of counsel at this hearing why there would be no
compliance with the various requests addressed
to the appellant.
Rule
50(5) requires that upon receipt of an application for a date
for the hearing the Registrar shall assign a
date of hearing and that he should not do so until the provisions of
sub-rule 7(a)
(b) (c) have been duly complied with. The Registrar
must give the applicant written notice of the date of hearing
whereupon the
applicant must forthwith deliver a notice of set down
and, in writing, give notice thereof to the Clerk of the Court from
which
the appeal emanated. The rule does not stipulate what has to
happen if no notice of set down is delivered or what the consequences
will be. Mr Ngrini who appears for the respondent has referred to
paragraph DC of the practice manual which deals with appeals
and
points out that the manual makes it clear that an appellant is not
entitled to elect whether he will proceed with the appeal
on the date
allocated by the Registrar. He certainly cannot do this with impunity
which is what the appellant apparently thinks
in this case.
There
is no question of this court disposing of the appeal on the merits.
The appropriate order seems to be the order that which
is made where
an appellant fails to deliver heads of argument for the hearing of an
appeal. In AC Building Services CC v PB and
A Personnel Consultants
1992 (2) SA 50
(T) the court dealt with such situation and struck the
matter from the roll with costs. The learned author of Harms, Civil
Procedure
in the Supreme Court refers to the case with the comment
that an appellant's failure to file heads of argument may amount to
an
abandonment of the appeal and the court may then strike the matter
from the roll.
In
the present case there is a grey area between what the rule 10
requires and what is said in the practice manual. For present
purposes it is not necessary to resolve that. This seems to me to be
a case where the matter has been properly enrolled by the
Registrar
but the enrolment process has not been completed by an appellant who
apparently is ignorant of the practice manual, or
was ignorant of it
until it was drawn to his attention. The appellant's conduct and/or
the conduct of his attorney in prosecuting
this appeal require
censure. It is unacceptable that an appellant obtains a date for the
hearing and then ignores the procedures
which are necessary to have
the matter disposed of on appeal and it is unacceptable and
unprofessional for an attorney to not reply
to letters 20 addressed
to him. Within a fairly short space of time a number of letters
relating to the appeal were addressed to
him which he seems to have
ignored. That is contrary to what is required of an attorney. It is a
discourtesy to the court for the
matter to be left like this. It is a
waste of the court's time. It is a waste of a court and of the time
of two judges who could
be employed elsewhere. In my view all these
factors justify a
special costs award
even if it was not provided for in the agreement between the parties.
Mr Ngrini asks for a costs order on the
scale as between attorney and
client and in my view that is justified by the circumstances which I
have set out in this judgment.
I make the following order:
1.
The appeal is struck from the roll;
2.
The appellant is ordered to pay the costs of the appeal on the scale
as between attorney and client.
MAKGOKA.
AJ: I agree
COURTADJOURNS