Brief Summary

Appeal — Application for leave to appeal — Condonation for late filing — Applicants, the Minister of Safety and Security and Constable Pofadder, sought leave to appeal against a judgment delivered on 19 December 2008, but filed their application almost seven months later — Delay attributed to alleged negligence of the State attorney — Court held that vague and unsubstantiated allegations regarding the delay were insufficient to justify condonation — Absence of supporting documentation and failure to demonstrate reasonable prospects of success in the intended appeal led to the dismissal of both the application for leave to appeal and the application for condonation.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application in the Northern Cape High Court, Kimberley, for condonation and leave to appeal. The application sought to challenge a judgment delivered on 19 December 2008 against the applicants in an action for damages arising from the arrest and detention of the respondents.

The applicants were the Minister of Safety & Security (first applicant) and Constable Desmond Pofadder (second applicant). The respondents were Christiaan Calitz van der Westhuizen (first respondent) and Martin Spangenberg (second respondent), who had been the plaintiffs in the underlying action.

Procedurally, the court was confronted with the fact that the application for leave to appeal was filed on 10 July 2009, approximately seven months after the judgment. Because the application was out of time, condonation was required. Both the condonation application and the application for leave to appeal were opposed by the respondents.

The dispute before the court therefore concerned whether the applicants should be excused for their failure to comply with the time limits for seeking leave to appeal, and—contingently—whether there were reasonable prospects that leave to appeal should be granted, primarily on the basis that the damages awarded were allegedly excessive.

2. Material Facts

The relevant and essentially undisputed factual position was that the applicants delivered their application for leave to appeal only on 10 July 2009, notwithstanding that Uniform Rule 49(1)(b) required such an application to be filed within 15 days after the judgment.

The applicants’ explanation for the delay was presented through an affidavit by Mr A S Basson, described as a legal administration officer in the South African Police Service and head of the litigation division. The explanation advanced was that the judgment was received by the South African Police Service on 14 January 2009, and that the State Attorney was allegedly instructed telephonically immediately thereafter to file an application for leave to appeal, with written repetition of those instructions allegedly occurring on 28 January 2009. The affidavit referred to further alleged follow-up enquiries on several dates between March and June 2009, and stated that no written confirmation of the filing of an application was received from the State Attorney. It was also stated that assets of the first applicant were attached in execution on 18 June 2009.

A material feature of the court’s evaluation of the facts was that the founding affidavit did not contain allegations addressing reasonable prospects of success on appeal. It also did not attach supporting documentation for the asserted written instruction or the subsequent alleged enquiries, nor did it clarify who precisely gave the instructions or made the enquiries. The court treated these deficiencies as central to the assessment of the adequacy and bona fides of the explanation.

The respondents, through their attorney, specifically highlighted in an answering affidavit the lack of supporting documentation and detail. No replying affidavit was filed by the applicants, and no confirmatory affidavit was provided by the State Attorney. During argument, counsel for the applicants accepted that a confirmatory affidavit from the State Attorney would have been the obvious step and that it should have been done, but no sworn explanation was provided for the failure.

In addition, the judgment recorded that on 7 September 2009 the applications were postponed to 14 September 2009. The postponement was attributed to an error in the respondents’ set-down arrangements (a typing error causing the condonation and leave to appeal applications to be set down on different dates) coupled with a failure within the State Attorney’s office to bring the notices of set down to the attention of superiors, resulting in counsel not being briefed for the earlier date.

3. Legal Issues

The central legal questions were whether condonation should be granted for the late filing of the application for leave to appeal, and, if condonation were granted, whether leave to appeal ought to be granted.

The dispute engaged a combination of procedural compliance and discretionary/value judgment. The condonation enquiry required the court to evaluate the explanation for delay, the extent of non-compliance with the rules, prejudice and the administration of justice, and the importance and prospects of the intended appeal. The leave to appeal aspect (to the extent considered) involved assessing whether there were reasonable prospects of success, particularly in relation to the complaint that the quantum of damages was excessive when compared with other cases.

4. Court’s Reasoning

The court approached condonation by applying the established “interests of justice” framework, as reaffirmed in Van Wyk v Unitas Hospital. It treated the relevant considerations as including the extent and cause of the delay, the reasonableness of the explanation, the effect on the administration of justice, the importance of the issues sought to be raised, and the prospects of success on appeal.

On the explanation for delay, the court found the founding affidavit materially deficient. It regarded the allegations about receiving the judgment, issuing instructions, and making enquiries as vague and unsubstantiated, particularly given the absence of annexures (such as the alleged written instruction) and the failure to identify the persons involved with sufficient clarity. The court considered these omissions significant in circumstances where indulgence was sought for a lengthy delay. It also noted the internal difficulty that, on the applicants’ own version, the judgment was received on the 17th court day after delivery, which meant the applicants were already out of time at that stage, and yet the affidavit did not allege that the State Attorney had been instructed to apply for condonation.

The court emphasised that the respondents had directly raised the absence of documentation and detail in their answering affidavit, and that the applicants’ failure to file a replying affidavit or to produce confirmatory evidence from the State Attorney counted heavily against them. Even accepting, for argument’s sake, that the State Attorney was to blame, the court considered that the applicants should not be permitted in the circumstances to avoid the consequences of their attorney’s failures, with reference to Saloojee and Another NNO v Minister of Community Development. The court inferred from the absence of any explanation by the State Attorney that there was no bona fide explanation. It also considered that there was no indication the State Attorney would not have been aware of the judgment when delivered, referring to Finbro Furnishers v Registrar of Deeds.

The court further took account of the continuing delay even after execution steps were taken, and it referred to authority dealing with the significance of further unexplained delay after a party becomes aware of non-compliance, including De Beer en ’n Ander v Western Bank Ltd and Rennie v Kamby Farms (Pty) Ltd.

Although the founding affidavit did not address prospects of success, the court nevertheless considered the substance of the intended appeal to the extent necessary for determining whether condonation would serve the interests of justice. During argument, counsel for the applicants limited the challenge to the contention that the damages were excessive and disproportionate, relying on the Supreme Court of Appeal’s decision in The Minister of Safety and Security v Tyulu (as described in the judgment). The court obtained and analysed the Tyulu judgment and concluded that it was factually distinguishable in important respects. In particular, the court rejected counsel’s submission that Tyulu involved a one-day detention and noted that the relevant unlawful detention there was about 15 minutes, with additional distinctions relating to context and the court’s findings in the present matter (including the existence of malice, which was not challenged in the condonation/leave to appeal argument and which the trial record was said to have placed in issue on a conceded basis).

The court recorded that no other comparative case law was advanced in argument and that no misdirection in the trial court’s discretion was demonstrated. It was not persuaded that there were reasonable prospects that leave to appeal would be granted on the grounds persisted in.

Independently of prospects, the court held that the flagrant and gross non-observance of the rules was, on the authority of Ferreira v Ntshingila (and as reinforced by National Union of Metalworkers of South Africa v Jumbo Products CC), sufficient to justify refusing condonation even if the appeal might not be without merit. It also rejected any suggestion that the applicants’ status as public institutions excused the non-compliance, referring to Administrateur, Transvaal v Van der Merwe, and it acknowledged the respondents’ legitimate interest in the finality of their judgment, as articulated in Ferreira and compared with Van Wyk.

On costs and the earlier postponement, the court considered that both sides bore some responsibility for the postponement on 7 September 2009, but accepted that the wasted costs should appropriately be treated as costs in the applications, an approach not opposed in argument.

5. Outcome and Relief

The court dismissed the application for condonation.

It ordered the applicants to pay the respondents’ costs in the condonation application and in the application for leave to appeal, including the wasted costs occasioned by the postponement on 7 September 2009.

Because condonation was refused, the application for leave to appeal was struck from the roll.

Cases Cited

Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC)

Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A)

Finbro Furnishers v Registrar of Deeds 1985 (4) SA 773 (AD)

De Beer en ’n Ander v Western Bank Ltd 1981 (4) SA 255 (AA)

Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (AD)

The Minister of Safety and Security v Tyulu (case number 327/2008, 27 May 2009)

National Union of Metalworkers of South Africa v Jumbo Products CC [1996] ZASCA 87; 1996 (4) SA 735 (AD)

Ferreira v Ntshingila 1990 (4) SA 271 (AD)

Administrateur, Transvaal v Van der Merwe [1994] ZASCA 83; 1994 (4) SA 347 (AD)

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rule 49(1)(b)

Held

The court held that condonation for the late filing of the application for leave to appeal should be refused because the explanation for delay was vague, unsubstantiated, and unsupported by documentation; there was no adequate sworn explanation from the State Attorney; and the degree of non-compliance was gross. The court considered the prospects of success only to the extent relevant to condonation and was not persuaded that the proposed appeal (principally directed at the alleged excessiveness of the damages award) had reasonable prospects, particularly given the factual distinctions from the authority relied upon in argument.

The court further held that, even if prospects had existed, the flagrant disregard of procedural rules justified refusal of condonation. As a consequence, the application for leave to appeal could not proceed and was struck from the roll. The applicants were ordered to pay the respondents’ costs of both applications, including wasted costs occasioned by the earlier postponement.

LEGAL PRINCIPLES

Condonation is a discretionary indulgence assessed in light of the interests of justice, which may include the nature of the relief sought, the extent and cause of delay, the effect on the administration of justice and other litigants, the reasonableness and bona fides of the explanation, the importance of the issues, and the prospects of success.

A litigant is generally not permitted to escape the consequences of its legal representative’s negligence, and the absence of a proper explanation from the attorney of record may justify an adverse inference as to the bona fides of the explanation tendered.

Even where an intended appeal may not be without merit, flagrant and gross non-compliance with procedural rules may justify refusal of condonation irrespective of prospects of success.

A successful litigant’s interest in the finality of a judgment is a relevant consideration in determining whether condonation should be granted, particularly where time limits for appeal processes have elapsed and further delay would impede enforcement of rights.

Minister of Safety & Security and Another v Van der Westhuizen and Another (721/2007) [2009] ZANCHC 47 (18 September 2009)