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[2024] ZAMPMBHC 8
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Barkhuizen-Barbosa N.O v Phelemba and Others (A35/2020) [2024] ZAMPMBHC 8 (1 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
APPEAL
CASE NUMBER: A35/2020
COURT
A QUO
CASE NUMBER: 2817/2018
(1)
REPORTABLE:
Yes
(2)
OF INTEREST TO OTHER JUDGES:
Yes
(3)
REVISED.
DATE:
01 February 2024
SIGNATURE
In
the matter between: -
GRETCHEN
BARKHUIZEN-BARBOSA N.O.
Applicant
and
CHRISTINA
PHELEMBA
First Respondent
OCCUPANTS
OF THE HOUSE KNOWN AS
8[...]
D[...] ROAD, HAZEYVIEW VAKANSIE DORP
Second Respondent
MBOMBEL
LOCAL MUNICIPALITY
Third Respondent
JUDGMENT
GREYLING-COETZER
AJ
[1]
The applicant, and executrix of a deceased
estate seeks the re-instatement of an appeal which lapsed. The
application is in terms
of Uniform Rule 46(6)(a).
Background
[2]
The applicant unsuccessfully instituted an
eviction application brought in terms of Section 4 of the Prevention
of Illegal Eviction
from and Unlawful Occupation of Lands Act 19 of
1998 (“PIE Act”) . The applicant seeks to appeal the
judgment of Jansen
van Rensburg AJ, sitting as court of first
instance.
[3]
The eviction application was instated
during 2018. Judgment in respect of the eviction application was
handed down on 22 May 2020.Leave
to appeal was granted on 6 August
2020 to the Full Court of the Mpumalanga Division of the High Court
(Mbombela).
[4]
Per
paragraphs [91] and [92] of aforementioned leave to appeal judgment,
it appears that leave to appeal was only granted in respect
of the
issue identified in paragraph [91].
[1]
However, the applicant contends the leave to appeal was granted
against the whole of the judgment. This is however not an issue
to be
decided in these proceedings.
[5]
The applicant, pursuant to obtaining leave
to appeal, filed her notice of appeal on 7 September 2020, this being
22 (twenty-two)
court days after to leave to appeal was granted. To
date there has been no indication that the applicant has sought an
extension
of time as contemplated in Rule 49(2).
Rule
49(2) provides:
“
If
leave to appeal to the full court is granted the notice of appeal
shall be delivered to all the parties within 20 days after
the date
upon which leave was granted or within such longer period as may upon
good cause shown be permitted.
”
[6]
The applicant further failed to comply with
the provisions of Rule 49(6)(a), in that she did not make written
application to the
Registrar for a date of hearing of the appeal, nor
did the applicant at the same time as making application for the
hearing of
the appeal, file copies of the record as contemplated in
Rule 49(7)(a). The 60 days period lapsed (if calculated from the date
of delivering the notice of appeal) expired on 6 December 2020.
[7]
Rule 49(6)(a) and (b) provide: -
“
(a)
Within 60 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 10 days after the expiry of the said
period of 60 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.
(b)
The court to which the appeal is made may, on application
of the
appellant or cross appellant, and upon good cause shown, reinstate an
appeal or cross-appeal which has lapsed
.
”
(own underline)
[8]
Rule 49(7)(a) to (d) provides: -
“
(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)
the application is accompanied by a
written agreement between the parties that the copies of the record
may be handed in late; 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)
….
(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
.”
[9]
Six months later, and on 15 July 2021, the
applicant purported to serve the record of proceedings on the first
respondent. Sixty
percent of the record was illegible. The record be
it illegible was not filed at court.
[10]
On 23 July 2021 the applicant provided the
first respondent’s legal representatives with the requisite
Form F in terms of
this court’s practice directive, for the
purpose of case managing the appeal.
In
reply the first respondent’s legal representatives indicated
that they are not in possession of the application for a hearing
date, which had to be filed in compliance with Rule 49(6)(a), thus
they hold the view that the appeal had lapsed. As there is no
pending
appeal they regarded themselves not in a position to complete a Form
F.
[11]
According to the applicant, her attorney
was under the mistaken belief that the record of proceedings had to
be filed simultaneously
with the application for a hearing date.
Further, that said attorney failed to appreciate and apply the
provisions of Rule 49(7),
which cater for the late filing of the
record with either the consent of the first respondent, or with the
filing of an application
for condonation when applying for said
hearing date.
[12]
Not appreciating the remedy per Rule 49(7),
and ostensibly also not aware that appeal was directed against a n
application therefore
the record was merely the documents filed by
the respective parties and the judgment, the compellation of the
record took 9 months.
Enrolments before
the motion court
[13]
Seven months after the record became
available and fourteen months after the record was due to be filed,
and on 7 February 2022,
the founding affidavit to the current
application for condonation and re-instatement of the appeal was
deposed to. The application
was not served until 6 April 2022, a
further two months later. The condonation application was thus
launched one year and six months
after the appeal lapsed.
[14]
This application was enrolled by the
applicant on the unopposed motion court for hearing on 20 June 2022.
During said hearing there
was an appearance on behalf of the first
respondent, who had filed her notice to oppose, belatedly so, on 14
June 2022. The parties
were directed to case manage the matter for
the purpose of exchanging affidavits and for the enrolment on the
opposed motion roll
.
[15]
During the unopposed hearing of 20 June
2022, the issue of whether this application ought to be dealt with by
the appeal court,
opposed to the motion court, was raised. It was
submitted on behalf of the applicant that the application was
launched and enrolled
on the motion court roll as the Registrar was
not inclined to enroll the matter absent the required Form F and that
Form F had
not been completed due to the stance adopted by the first
respondent that the appeal had lapsed.
[16]
The applicable directives of this Division
provides that appeal matters are enrolled and managed in terms of
Form F. In this respect
paragraph 21.5 provides that the management
of appeal matters will be by completion of a Form F by the parties or
their legal representatives,
and Form F will be completed only when
the parties are sure and have verified that all sets of court papers
are complete and available,
including the record of proceedings in
the court
a quo
.
Therefore, according to the applicant the application was
sui
generis
in that the appeal first had to
be revived in order for Form F to be completed and for the appeal to
be enrolled.
[17]
The court was not called upon to make a
determination whether the applicant was entitled to have the matter
adjudicated by a single
judge on the motion court roll, and no such
determination was made.
[18]
There appeared to be no attempt before that
court to give effect to the applicant’s present view that the
application was
to be dealt with by the full court. The court seemed
content that the application was to remain on the motion court roll.
This
is indeed where it was enrolled, when it came before the opposed
motion court.
[19]
The matter was however finally enrolled for
hearing as an opposed motion by the first respondent, pursuant to the
applicant failing
to comply with the practice directive of filing
heads of argument, oral written document and a practice note. The
first respondent
complied with aforementioned.
[20]
It must be mentioned that the first
respondent did not file her answering affidavit as agreed to in terms
of a Case Management of
Opposed Motions -Form B. She filed same only
on 29 September 2023, being 8 court days before the roll closed. The
first respondent
anticipated that the applicant would potentially
seek a postponement and sought to file a supplementary affidavit on
11 October
2023. Therein the first respondent sets out the events
during the period 28 September 2023 and for as far as the applicant
would
seek a postponement of the application on the basis that the
first respondent’s answering affidavit was filed late.
[21]
On the hearing date the applicant appeared
and sought a postponement of the application. The applicant contended
that considering
that the roll closed on 11 October 2023, she was
only afforded 8 (eight) court days from receipt of the answering
affidavit to
file a replying affidavit, practice note, heads of
argument and written oral argument. The applicant further contended
that the
truncation of the time periods was unjustified, and the
matter was not ripe for hearing and ought to be postponed, together
with
a punitive costs order against the first respondent.
[22]
Pursuant to lengthy address in respect of
the history of the matter, and particularly considering that three
years have passed since
leave to appeal had been granted, the fist
respondent sought to remove the obstacle the applicant was
complaining of, being the
belated opposition. She withdrew her
opposition to the condonation application to avoid a further
postponement and ensure the condonation
is dealt with. Having done
so, the application was unopposed basis, and could be dealt with as
such.
[23]
Counsel for the applicant however contended
that he was not in a position to address the court on the condonation
application, even
on an unopposed basis, as he was only briefed to
seek a postponement. The applicant was consequentially allowed time
to prepare,
the matter was stood down to the next day for address
pursuant to opposition being withdrawn.
[24]
The following day, counsel for the
applicant confirmed that he held instruction not to proceed with the
condonation application
on the motion court roll, but to seek that
the condonation application be dealt with by the appeal court. In
this respect he placed
reliance on the matter of
Lipschitz
N.O. v Saambou Nationale Bouvereniging
1979 (1) SA 527
(T).
[25]
Counsel for the first respondent submitted
that the enrollment on the motion roll was the election of the
applicant, and that considering
the unopposed nature of the
application, convenience and extensive time lapse since the leave to
appeal was granted, the court
was empowered to invoke its inherent
jurisdiction and determine the application, in the interest of
justice.
[26]
It was suggested on
behalf of the applicant that the reason for the matter still before
the motion court was the order granted in
the unopposed motion court.
Save for the fact that the issue was raised, no determination was
sought or made.
[27]
Having already in
June 2022 formed the view that the matter has not been correctly
enrolled on the motion court roll before a single
judge, the
applicant could have enrolled it before the appeal court. Although
the contention was that the Registrar would not do
so absent a
jointly agreed to Form F, nothing was before court demonstrating
same, nor was any attempt made to persuade the registrar
otherwise
such as presenting a Form F completed only by the applicant and
setting out the circumstances that gave rise to same
on affidavit.
The latter is a recognized practice in this division where parties
are faced with a refusal of another to cooperate
with case management
of trials, motions and appeal.
Issues
to be determined
[28]
What stands to be determined is whether
this court is empowered to adjudicate the now unopposed condonation
application in terms
of Rule 49(6). If this is answered in the
negative this application will have to be referred to the Full Court
for determination.
If answered in the affirmative, this court has to
determine whether the applicant has made out a case for condonation
and re-instatement
of the appeal.
Rule 49(6)(b)
[29]
The court
a
quo
granted leave to appeal to the Full
Court of this Division. In terms of Rule 49(6)(b), the court to
which the appeal is made
may on application and upon good cause
shown, reinstate an appeal which has lapsed.
[30]
In the present matter there cannot be any
question of the fact that such court to which the appeal is made
means the Full Court,
which is a court consisting of three judges, in
accordance with
Section 1
of the
Superior Courts Act, 10 of 2013
.
[31]
The
hearing of the application for reinstatement by the Full Court is in
conformity with the rules of practice whereby applications
for
condonation of procedural shortcomings in appeals are heard by a
court comprising of as many judges as would constitute the
court
of appeal.
[2]
Trans-African
Insurance
Co.
Ltd
v Maluleka
1956
(2) SA 273
(A) said:
"No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which are
an important
element in the machinery for the administration of justice. But on
the other hand technical objections to less than
perfect procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if possible,
inexpensive decision
of cases on their real merits."
Inherent power of
the High Court
[32]
Having said that, I am of the view that
this court is empowered, provided the circumstances of the case
justifies same, to determine
the matter on the basis of its inherent
power to protect the interest of justice and regulate its own
process. It will not be in
all cases that that it is justify that the
court invoke its inherent power to do so.
[33]
Section 173
of the Constitution provides:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common-law, taking into account the interests of
justice.”
[34]
Section
173 of the Constitution has been described by the Constitutional
Court as an important one. In
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions
2007 (1) SA 523 (CC)
[3]
the
court held:
“
the
only qualification on the exercise of that power contained in section
173 is that courts in exercising this power
must
take into account the interests of justice
."
(own underlining)
The
court went on to state that the power in terms of section 173 is the
authority a court has to prevent possible abuse of process.
[4]
[35]
In
Eke
v Parsons
2016 (3) SA 37 (CC)
[5]
, the
constitutional court held that:
“
Under
our constitutional dispensation, the object of court rules is
twofold. The first is to ensure a fair trial or hearing. The
second
is to 'secure the inexpensive and expeditious completion of
litigation and . . . to further the administration of justice'.
I
have already
touched on the inherent jurisdiction vested in the superior courts in
South Africa. In terms of this
power, the High
Court has always been able to regulate its own proceedings for a
number of reasons, including catering
for circumstances
not
adequately
covered by the Uniform Rules and generally ensuring the efficient
administration of the courts'
judicial
functions."
[36]
In
the
Social
Justice Coalition and Others v Minister of Police and Others
2022
JDR 2047 (CC)
[6]
the
constitutional court stated:
“
The
inherent power of this Court and other superior courts to protect and
regulate their own processes, is closely associated with
and
inextricably linked to the manner and fashion in which a litigant may
exercise the right of access to courts.”
[37]
The court’s
inherent power is not unlimited. In
S
v Molaudzi
2015 (2) SACR 341
(CC), the court held that the inherent power to
regulate its own process applies to procedural right rather than
substantive rights.
Furthermore, that a court may exercise inherent
power to protect and regulate its own process when confronted by
inadequate procedures
and rules in the sense that they do not provide
a suitable mechanism to deal with the particular scenario the court
is faced with.
[38]
The matter at hand is
one such case where the circumstances does not justify the referral
of the matter to the Full Court for determination.
It will not be in
the interest of justice considering the inordinate delay in
finalisation of this application and the intended
appeal with has
presented itself. Notwithstanding the leave to appeal being granted
as far back as August 2020, the appeal having
lapsed on 6 December
2020, and this application being served in April 2022, it still has
not been adjudicated upon.
[39]
In
Cassimjee
v Minister of Finance
2014
(3) SA 198 (SCA)
[7]
the
Supreme Court of Appeal dealt with the inordinate delay in
prosecuting a claim and held that:
"
an inordinate or
unreasonable delay in prosecuting an action may constitute an abuse
of process
”
[40]
This principle equally find application
where an inordinate and unreasonable delay has occurred in
prosecution of an appeal and/or
reinstatement of such an appeal.
[41]
The applicant acts in
her capacity as executrix of a deceased estate. The estate cannot be
finalised while the appeal is pending.
More so, the first respondent
is faced with uncertainty for as long as the matter does not reach
finality. The applicant has elected
to enrol the matter on the motion
roll on two occasions in the circumstances as set out above. Other
than contending from the bar
that the Registrar would not enrol the
matter absent a completed Form F, it has up until this hearing never
made any further attempt
to enrol it before the appeal court. The
re-instatement is now unopposed. The applicant previously in its
practice note filed
in the unopposed motion court acknowledged the
practice directive of this division providing for unopposed
applications to be dealt
with on paper. Moreover, for the reasons set
out below, there is no justification to burden an appeal court with
this application.
Merits
of the application for re-instatement of the appeal
[42]
Having found that this court is empowered
to hear and consider the re-instatement application, I now turn to
the merits of that
application.
[43]
The applicant’s case in support of
the application for condonation and re-instatement has already been
set out above. The
appeal has lapse in terms of the deeming
provisions of Rule 49(6)(a).
[44]
The explanation for the delay is based on
the applicant’s attorney harboring under the erroneous
impression that an application
for a date of hearing could only be
made once the appeal record was available. Further to this the
applicant’s attorney of
record failed as the applicant stated,
“
to appreciate and apply the
provisions of Rule 49(7)”.
The
latter affords an appellant a remedy in circumstances where the
record is not available. The record can be filed after written
application has been made to the registrar for a hearing date either
by agreement between the parties or 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.
[45]
It was further explained that,
notwithstanding the applicant’s attorney engaging Digital Audio
on 9 October 2020 enquiring
as to the process in order to file the
judgment and record, no response was received until 10 December 2020.
Between the period
9 October 2020 and 10 December 2020, the
applicant’s attorney sent two follow-up e-mails, on 4 November
2020 and 10 December
2020 respectively.
[46]
In the correspondence from Digital Audio
dated 11 December 2020, it requested a case number in order for it to
request the dates
from court. The applicant’s attorney of
record only responded to this enquiry two months later, on 9 February
2021. The attorney
of record should have in its first email to
Digital Audio provided the case number and if not due to an oversight
she would have
been able to immediately respond providing same
together with full detail of the matter.
[47]
In the approximate 180 days between the
period February 2021 and June 2021 the applicant’s attorney of
record and Digital
Audio exchanged e-mails on 10 days. Notably from
these exchanges the applicant’s attorney of record did not
appreciate the
fact that the judgment was a written judgment provided
to the parties electronically and that the appeal against an
application
consists of the application as it served before court
only. In addition, the judgment in the application for leave to
appeal was
a written judgment. As all these proceedings were
conducted virtually, the court held copies of the recordings of the
virtual hearings
and the Judge’s secretary could have been
approached with ease, directly by the applicant’s attorney of
record or by
Digital Audio to obtain the recording. The
difficulty experienced by the applicant’s attorney in compiling
the appeal
record was therefore wholly avoidable.
[48]
On 15 July 2021 the record of proceedings
was served on the first respondent. However, 60% of the documents
were illegible. To date
hereof no appeal record has been filed with
the registrar. The explanation proffered for this was that it would
be done once condonation
and reinstatement of the appeal had been
obtained.
[49]
Further, the applicant avers that she was
unable to complete the requisite Form F in terms of the court’s
practice directives,
due to the stance adopted by the first
respondent that the appeal had lapsed. No attempts were made by the
applicant to submit
a Form F, completed by the applicant only,
together with an affidavit explaining why same was not completed by
both parties. In
my view, had the applicant done so, this matter
would have from the outset been enrolled before the Full Court.
[50]
According to the applicant, it was only
when the first respondent’s attorneys expressed their view that
the appeal has lapsed,
that the applicant appreciated that an
application for condonation would be necessary. This was during
July/August 2021.
[51]
As set out above, the affidavit to the
application was deposed to on 7 February 2022, and only served during
April 2022. There is
thus no explanation before court for the period
July 2021 to February 2022, nor for the period that lapsed between
deposing to
the affidavit and serving the application.
[52]
The
basic principle is that a court considering a condonation application
has a discretion to be exercised judicially, upon a consideration
of
all the facts, and in essence it is a matter for fairness between the
parties.
[8]
Amongst the factors
usually relevant are (a) the degree of lateness; (b) the explanation
therefor; (c) prospects of success and
(d) the importance of the
case.
[53]
In
Aurecon
South Africa (Pty) Ltd v City of Cape Town
2016 (2) SA 191
(SCA) at paragraph [17] it was held that the relevant
factors in the enquiry generally include the nature of the relief
sought;
the extent and cause of the delay; its effect on the
administration of justice and other litigants; the reasonableness of
the explanation
for the delay, which must cover the whole period of
delay; the importance of the issues to be raised; and the prospect of
success.
[54]
A
court considering a condonation application exercises a discretion in
the true sense, upon considerations of all the circumstances
of each
case.
[9]
The
onus
is on the applicant to satisfy the court that condonation should be
granted.
[10]
[55]
Much of the blame for the delay in making
written application to the Registrar for a hearing date and filing of
the record can be
attributed to the applicant’s attorney.
Although the transcribers took their time responding to e-mails, the
ultimate obligation
to ensure that Rule 49 is complied with, and that
the record is timeously available to be filed at court, befalls the
applicant’s
attorney. The applicant’s attorney’s
“lack of appreciating” the Rules of court, which clearly
set out the
course to be followed by an appellant intending to
appeal, is not only an inadequate explanation but amounts to a
complete disregard
for the rules of court. The explanation that she
lacked appreciation can only mean that she did not acquaint herself
with the content
of the Rules, for as far as she did not know the
content of Rule 49.
[56]
The
facts of this matter and that in
PAF
v SCF
2022 (6) SA 162 (SCA)
[11]
are
similar. In said matter the appeal had lapsed, and the explanation
proffered by the applicant was that its attorney of record
was under
an erroneous impression that the application for the allocation of a
hearing date could only be made once the appeal
record was ready for
filing. The delay in finalizing the preparation was attributed to the
transcribers. The Full Court was critical
of the applicant’s
attorney for failing to take steps to compel the transcribers to
complete the appeal record timeously,
and for the applicant’s
failure to explain this in an affidavit. At paragraph [17] Makgoka
JA, after dealing with what the
Full Court held, stated that:
“
[
17]
Even allowing for the fact that the delay in the preparation of the
record was occasioned by the transcribers,
and that there was not
much the applicant’s attorney could do about it,
there
is still no proper explanation as to what the attorney ‘misconstrued’
about Rule 49(7)(a).
The rule
requires the application for a date to be filed simultaneously with
copies of the record. But it has an important proviso
….
[18]
The
proviso is clear
.
If the record was not available, the applicant’s attorney could
have requested the respondent’s attorney to agree
to file the
record later, failing which, she could have deposed to an affidavit
explaining to the Registrar the difficulties experienced
by the
transcribers to finalise the preparation of the record.
”
[57]
Notwithstanding being notified by the first
respondent’s attorney as early as July 2021 that the appeal had
lapsed, the applicant
and/or her attorney appears did not act to
rectify the situation. In July 2021 the applicant already had the
record available,
be it to some extent illegible, yet the condonation
application was only served in April 2022. In
Maoki
v Reckitt and Coleman (Africa) Ltd and Another
1968 (3) SA 98
(A) at 101G it was held:
“
An
attorney who is instructed to prosecute an appeal … is duty
bound to acquaint himself with the procedure prescribed by
the rules
of court to which a matter is being taken on appeal.
”
[58]
In terms of
Clause 3.13 of the Code of Conduct of Legal Practitioners, Candidate
Legal Practitioners and Juristic Entities, practitioners
must ‘remain
reasonably abreast of legal developments, applicable laws and
regulations, legal theory and the common law,
and legal practice in
the fields in which they practice.’ A lack of knowledge or
flagrant
neglect
to
acquaint yourself with the applicable rules governing appeals amounts
to a breach of the code of conduct. Thus, when an applicant
intends
to reply on a lack of knowledge or ‘appreciation’ of the
rules it should be explained with specificity how
it came to be that
the practitioner did not have knowledge of said rule or what caused
the practitioner to neglect to acquaint
itself with it.
[59]
It
is a requirement that an application for condonation must be made as
soon as possible after the party becomes aware of its failure
to
comply with the rules.
[12]
In
the present matter it appears that the applicant or her attorney was
of the view that condonation was simply there for the asking.
[60]
In
Unitrans
Fuel & Chemical (Pty) Ltd v Dove-Co Carriers CC
2010 (5) SA 340
(GSJ) at 344F-G a full court directed that the High
Court should in the future require that (a) the entire period of the
delay
be thoroughly explained, regardless of the length of the delay;
and (b) where the delay was occasioned by transcribers contracted
to
the Department of Justice failing to make records available
timeously, that applicants must show (i) that they were not at fault,
and (ii) what attempts were made at compelling the transcribers to
provide the transcription, including, but not limited to, the
bringing of an application to court compelling compliance. At
343J-344A the court further held that “
this
measure is aimed at reducing the burden on judges in appeal courts
having to wade through voluminous applications for condonation
required to explain substantial delays
”.
[61]
In
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited and Others
2017 (6) SA 90
(SCA) at paragraph [26], dealing with the principles
governing an application for condonation in the context of
reinstatement of
an appeal, it was stated:
“
What
calls for an explanation is not only the delay in the timeous
prosecution of the appeal, but also the delay in seeking condonation.
An appellant should, whenever he realizes that he has not complied
with the rule of this court, apply for condonation without delay.
A
full, detailed and accurate account of the causes of the delay and
the effects must be furnished to enable the court to understand
clearly the reason and to assess the responsibility. Factors which
usually weigh with the court in considering an application for
condonation include the degree of non-compliance, explanation
therefore, 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
.”
[62]
As
expressed by Goosen JA in
The
Members of the Executive Council for Health, Eastern Cape Province v
YN obo EN
[13]
the
touchstone for a condonation application in the context of the
reinstatement of an appeal is the interest of justice.
[63]
The degree of lateness in the present
matter can be divided into the initial period from 6 December 2020,
when written application
had to be made to the Registrar and the
record filed, up until July 2021, when the applicant avers to have
been made aware that
the appeal had lapsed. The second period is
between July 2021 to February 2022, when the founding affidavit to
the condonation
application was deposed to. The third period is
between February 2022 when the founding affidavit was deposed to and
April 2022
when the application was issued. The delay between the
first enrolment on the unopposed roll in June 2022 and the enrolment
before
the oppose motion court more than a year later is discounted
for the present purpose. In each of the first three periods
there are weeks and/or months unexplained. For example, but for
sending emails on 13 days nothing more was explained or done in
the 6
months between December 2020 and July 2021. No explanation as
provided for the delay in launching the application between
July 2021
and April 2022, nor was any explanation provided for why it took two
months from deposing to the founding affidavit to
issue the
application.
[64]
In the present matter the applicant’s
attorney’s failure to appreciate what is set out in Rule 49(6)
and (7) does not
amount to an adequate explanation. It still remains
unexplained how she failed to appreciate same, and why she did not
apply the
provisions provided by the rule, before and after her
attention as drawn to it. An exacerbating circumstance is that the
applicant
herself is a senior legal practitioner. Although she does
not act in her capacity as attorney in these proceedings, she, as an
informed client, ought to have weighed in on the matter when she
engaged her attorney of record on the noting of the appeal and
when
receiving feedback in respect of the record, which can reasonably be
assumed did happen.
[65]
The degree of lateness is
extreme
and
the explanation for
non-compliance, as already held herein above, is inadequate.
[66]
Generally,
an important consideration in relation to the reinstatement of an
appeal would be the prospect of success on appeal.
Although
important, it is not decisive.
[14]
As held in
The
Member of the Executive Council for Health, Eastern Cape Province v
YN obo EN
(supra)
at paragraph [14]
[15]
, where
the degree of non-compliance is flagrant and substantial, condonation
may be refused irrespective of the prospect of successful
the
explanation for flagrant and substantial non-compliance is manifestly
inadequate, or there is no explanation at all, the prospect
of
success need not be considered.
[16]
[67]
This is such a case. The eroding effect on
the administration of justice caused by the delay in the prosecution
of the appeal is
self-evident.
Costs
[68]
As this matter is considered on an
unopposed basis, and the applicant sought no order of costs in
circumstances were it is unopposed
no cost order is made.
Order
[69]
On the basis set out above, the following
order is made: -
1.
The applicants condonation application and re-instatement application
is dismissed;
2.
No order as to costs.
GREYLING-COETZER
AJ
DATE
OF HEARING: 24
and 25 October 2023
DELIVERED
ON:
This
judgment was delivered electronically by circulation to the parties’
representatives by way of email and by release to
SAFLII. The date
and time for delivery is deemed to be at 09h00 on 01 February 2024.
FOR
THE APPLICANT:
Adv
Oosthuizen
Instructed
by Velile Tinto and Associates
c/o
Combrink Greyling Attorneys
E-mail:
mirandi@cgattorneys.co.za
FOR
THE FIRST RESPONDENT:
Adv
Van den Bergh
Instructed
by Desire Koch Attorneys
E-mail:
office@dkatt.co.za
[1]
“
[91].
This application for the eviction of me Phelemba and other occupiers
of the property at 85 Drawwers Road Hazyview Vakansie
Dorp raised
the following questions – [91.1]. When and under which
circumstances would an executor/executrix be liable
to personally be
liable for the payment of cost in a case such as that of me Phelemba
and/or other respondents when its application
is dismissed where
there was no mala fide actions, gross negligence or any other aspect
which would render a cost order against
such executor/executrix?
Provision is made for payment of cost by the official in person
where the official personally acted
‘unreasonable’.
[91.2]. It exercising its discretion and based on the facts before
the court, did the court apply
its discretion correctly in
that the applicant 'unreasonable’' under the circumstances or
did the court exceeded
(sic) its power in granting a cost
order against the applicant on a party-and-party scale as an
executrix in her official
capacity? ORDER [92]. In order the clarify
on the issues raised above I am of the view that – [92.1].
Leave to appeal is
granted to the applicant to the full court of the
Ahigh(sic) Court of South Africa Mbombela Division. ..”
[2]
De
Sousa v Cappy’s Stall
1975 (4) SA 959
(T);
Lipshitz
N.O. v Saambou Nationale Bouvereniging
1979 (1) SA 527
(T);
PAF
v SCF
2021 (6) SA 162 (SCA)
[3]
para
36
[4]
para
90
[5]
para
39-40
[6]
para
71
[7]
para
10
[8]
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532B-E
[9]
PAF
v SCF
2022 (6) SA 162
(SCA)
and
Mabaso
v Law Society of the Northern Provinces
[2004] ZACC 8
;
2005
(2) SA 117
(CC) at par
[20]
as referred to therein
[10]
Glazer
v Glazer NO
1963 (4) SA 464
(AD) at 702H
[11]
At
para 13 - 23
[12]
P
E Bosman Transport Works Committee and Others v Piet Bosman
Transport (Pty) Ltd
1980 (4) SA 794
(A) at 800A-C
[13]
(056/2021)
[2023] ZASCA 32
(30 March 2023) at par [8]
[14]
Commissioner:
South African Revenue Service Gauteng West v Levue Investments (Pty)
Ltd
[2007]
3 All SA 109
(SCA) at par [11]
[15]
See
the authority referred to therein
[16]
Darries
v Sheriff, Magistrates’ Court, Wynberg and Another
1998 (3) SA 34
(SCA) at 44H-I