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[2004] ZAFSHC 8
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Matomela v Presbyterian Church of Africa (20/2003) [2004] ZAFSHC 8 (26 February 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case
No.: 20/2003
In
the matter between:
ERIC MATOMELA
Applicant
and
PRESBYTERIAN CHURCH OF AFRICA
Respondent
___________________________________________________________
CORAM:
MUSI, J
___________________________________________________________
HEARD ON:
20
FEBRUARY 2004
___________________________________________________________
DELIVERED ON:
26
FEBRUARY 2004
___________________________________________________________
[1] This is an application for leave to appeal against a
judgment I delivered on 5 December 2002 in terms of which I upheld a
point
in limine
raised
by the then applicant (the respondent) and pursuant to which I
granted the orders sought by the respondent. It is an
ex
tempore
judgment wherein the full reasons for
my decision are given. A brief background to this matter is
necessary.
[2] The notice of application for leave to appeal herein
was filed on 20 January 2003 whereas the period of 15 days within
which it
should have been filed as required by Rule 49(1)(b) expired
on 30 December 2002. The notice was thus out of time and an
application
for condonation became necessary. In the original notice
on the file, it is indicated that such application for condonation
would
be made and that the affidavit of Mr Johan Muller, the
applicantâs former attorney, would be used in support thereof. No
such
affidavit was however annexed to the application, and it was
apparently not served on the respondent and hence no answering
affidavit
was filed on behalf of the respondent. A copy was only
handed in during the hearing of the application. Nothing transpired
since
the application was filed and only on 18 December 2003 was a
notice of set-down of the application served and filed. The matter
was then argued on 20 February 2004. No explanation has been
provided as to the long delay in setting the application down nor
could
counsel for the applicant provide any during the hearing.
[3] The respondent not only opposes the application for
leave to appeal, but also vigorously opposes the application for
condonation.
In regards to the latter, Mr Cole, for the respondent,
filed heads of argument wherein he raises three main grounds on the
basis
of which he contends that condonation should be refused, namely
prejudice, the respondentâs interest in the finality of the
judgment
and the procedure followed. I shall revert to these issues
shortly. Mr Cole also referred to a subsequent court application
involving
the same parties in the Eastern Cape Division of the High
Court heard on 23 January 2003 and annexed a copy of a draft order
embodying
a settlement reached by the parties and which was made an
order of Court. This order has a bearing on the issue of
expectation
of finality and the question of whether the applicant was
bona fide
in
proceeding with the instant application.
[4] Now it is so that condonation requires a separate,
substantive application on notice to all the interested parties duly
supported
by affidavit and in that context the instant application is
procedurally deficient. However, that is not a fatal defect and the
important thing is that the intention to apply for condonation and a
supporting affidavit were incorporated in the notice of application
for leave to appeal. Of course, the fact that the affidavit itself
was not served on the respondent is a defect that would have
entitled
the respondent to object to the hearing of the application for
condonation since it had not been given the opportunity of
responding
to the affidavit. In the event, however, no such objection was
raised and the matter of condonation was fully argued.
[5] The cardinal question is whether the applicant has
set out in the supporting affidavit the necessary explanation for the
late
noting of the appeal. It is trite that condonation is a matter
within the discretion of the Court and is not simply there for the
asking. The discretion to condone must be exercised judicially
having regard to all the circumstances of the case. The Courts have
over the years refrained from providing an exhaustive list of
factors that would constitute good cause but have made it clear that
that is a matter to be determined by the presiding officer having
regard to the circumstances of each case. Guidelines have, however,
been laid down as to which factors would be relevant. These factors
are not individually decisive, but must be taken in conjunction
with
each other. Compare
MELANE v SANTAM
INSURANCE CO LTD
1962 (4) SA 531
(A)
at 532C-F;
UNITED PLANT HIRE v HILLS
1976 (1) SA 717
(A) at 720E-G
, both of which
were referred to by counsel for the respondent.
[6] The only source of the required explanation is the
affidavit of the applicantâs erstwhile attorney Mr J Muller. But
what does
it say? He says that he was instructed to attend to the
main application herein by Messrs. Michael Randell Incorporated of
Port
Elizabeth and attended the hearing of 5 December 2002. That is
when the matter was argued and he must have noted the judgment
wherein
full reasons were given in court. He says that on 6 December
2002 he communicated the judgment to his instructing attorneys and
on
10 December 2002 he was phoned by another attorney who was not his
instructing attorney and told that the applicant wanted to
appeal.
Pursuant to that he requested reasons for judgment on 20 December
2002. I do not know what that means, but there is no
indication on
the file of any such request. But what happened thereafter?
Nothing, and on 20 December 2002 he went on holiday and
returned on 9
January 2003. Why was the application for leave to appeal not lodged
before he went on holiday, Mr Muller does not
explain. He does not
say what were the problems that made it impossible for him to note
the appeal. No indication whatsoever is
given of the problems that
the applicant or his instructing attorneys may have experienced in
this regard. Moreover, Mr Muller was
present when judgment was
delivered and should surely have been able to prepare the necessary
application, at any rate, with the
assistance of counsel who argued
the matter (who is incidentally a local advocate). All that Mr
Muller says is that he got confirmation
from his instructing
attorneys that it was always the applicantâs intention to apply for
leave to appeal. It is clear though that
he never go instructions
until after 9 January 2003. And why were instructions not given
timeously it is not known. In my view,
no valid explanation has been
given.
[7] The faulty procedure followed and failure to give a
valid explanation for the delay are typical of the laxity with which
this
whole application has been approached. Having lodged the
application on 20 January 2003 it took a full 11 months before the
matter
was enrolled for hearing and again there is no explanation for
this inordinate delay. From my own experience in this Division
applications
of this nature are usually set down and heard within a
few months and it can safely be accepted that the Registrar had not
been approached
to fix a date until towards the end of 2003.
[8] It is in the above context that the issues of
prejudice and the need for finality should be viewed. As for the
question of possible
prejudice to the respondent, the supporting
affidavit does not address it at all. Mr Williams, for the
applicant, argued that the
matter should be approached on the basis
of the time at which the application was lodged. He submitted that
as at that time there
could have been no prejudice. He also said
that the respondent should have been aware that a late application
for leave to appeal
to could be lodged and in that context the
respondent could not have regarded the matter as closed. He said
that at any rate even
if the application had been lodged timeously
the appeal itself would still have taken time to hear. The latter
aspect of the argument
is best met with the retort that but we should
now be hearing the appeal itself rather than this application. The
effect of this
out of time application, if granted, would be to
postpone finality by yet another year or so. And what has since
transpired between
the parties is a very relevant consideration.
Though the issue of the case in the Eastern Cape Division was raised
for the first
time in the respondentâs heads of argument, it is, as
was said by Mr Cole, a matter of public record. The applicant
himself is
cited as a party therein and he does not deny the
existence of such order. In terms of that court order, fresh
elections would have
been held and the dispute over leadership of the
church resolved, and that is the very dispute that had brought the
parties to this
Court in the first place. That would render the
intended appeal, if successful, redundant save perhaps in relation to
costs. It
is interesting also to note that this application was set
down sometime after the elections in March 2003. The rhetorical
question
arises whether the applicant has not revived the instant
application only because he has fared badly in those elections (and
were
told by Mr Cole that someone else has been elected Moderator
Elect of the church) and now he wants to renege on the agreement that
was meant to bring about finality to the dispute over leadership of
the church. This would raise a further question of whether the
applicant was
bona fide
in his intention to appeal.
[9] The point is that in these circumstances any further
delay in bringing about finality to the matter will be gravely
prejudicial
to the respondent (the church and its members). Nor will
it be fair that a matter that has ostensibly been resolved be revived
and
thus reignite the conflict and the disarray in the affairs of the
church.
[10] Now is it so that where the prospects of success on
appeal are good that would be a strong factor to be taken into
account.
I am, however, not persuaded that there are such prospects
in this case. Even if the case may be arguable, that is not the only
consideration that should influence the grant of condonation.
(Compare
PALMER v GOLDBERG
1961 (3) SA 692
(N) at 698C-D
).
In
casu
there are other considerations that far
outweigh this factor, especially when taking into account that no
valid explanation has been
given for the delay in lodging in the
application in the first place coupled with the failure to explain
the delay in setting it
down.
[11] I have come to the conclusion that the applicant
has not shown good cause for the grant of condonation and condonation
is refused.
In the result, the application is dismissed with costs.
_____________
H.M.
MUSI, J
On behalf of Applicant:
Adv.
A Williams
instructed by
Israel & Sackstein Matsepe Inc.
Bloemfontein
On behalf of Respondent:
Adv.
S.H. Cole
instructed
by
Mapitse
& Khang Attorneys
Bloemfontein
/scd