About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1989
>>
[1989] ZASCA 54
|
|
Moraliswani v Mamili (333/87) [1989] ZASCA 54; [1989] 4 All SA 766 (AD) (17 May 1989)
Case No 333/87
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
J M MORALISWANI
Applicant
and
R
M MAMILI
Respondent
CORAM:
HOEXTER, HEFER, E M GROSSKOPF, MILNE,
EKSTEEN, JJA
HEARD:
3 May 1989
HANDED IN:
17 May 1989
REASONS FOR JUDGMENT E M GROSSKOPF, JA
The petitioner's application
for condonation of the late furnishing of security for the respondent's costs of
appeal was dismissed
with costs on 3 May 1989, and we intimated that the Court's
reasons would be furnished later. These reasons now follow.
2
The petitioner is the chief of the Basubia tribe in the Caprivi Zipfel in
South West Africa. He was the plaintiff in an action in
the Supreme Court of
South West Africa in which he claimed the following substantive relief:
"A declaratory order declaring that
1.1 The Plaintif is the 'Munintenge', being the Supreme Chief of the tribes and
inhabitants of the Caprivi Zipfel.
1.2 The Plaintiff be regarded as the owner and/or custodian and/or controller of
all communal land in the Caprivi Zipfel."
The particulars of claim are dated 18 April
1983.
The defendant, who was the chief of the Mafwe
tribe in the Caprivi Zipfel, contested the action and asked in his plea that the
plaintiff's
claims be dismissed with costs. In addition be counterclaimed for an
order declaring,
inter alia
,
a) that a demarcation line existed between the areas of authority of the
plaintiff and the defendaht, consisting of a series of straight
lines between
certain beacons,
and,
b)
that the defendant was entitled to exercise
exclusive
3
authority in the area lying east of the Kavango river of that part of the
territory of South West Africa known as the Caprivi Zipfel,
and west of the
demarcation line referred to in (a) above. For convenience I shall continue
referring to the
parties as plaintiff and defendant
respectively.
After close of pleadings the matter was set down
for
trial on 5 March 1985. On that date the parties,
by agreement,
requested the court to decide the following issue
in
limine
"as
if on exception":
"Inasmuch as it is agreed that:
a) The plaintiff has
not been appointed or
recognised as chief or headman of the Mafwe
tribe in
terms of the relevant legislation;
b) Neither the plaintiff nor any other person
has been appointed or
recognised as
'Munitenge' or Supreme Chief in terms of the
said
legislation;
c) no tribal boundary has been defined in terms
of the said legislation in
respect of either
the Basubia or Mafwe tribe,
can this Honourable Court grant the relief sought
by
4
the plaintiff in the event of his establishing that he is the 'Munitenge' of the
said tribes, and of the other inhabitants of the
Caprlvi, in the sense set out
in the particulars of claim (as amplified by the Further Particulars thereto),
and the owner and/or
custodian and/or controller of all communal land in the
Caprivi in terms of the customary laws and traditions of the inhabitants
of the
Caprivi?".
The court (STRYDOM J) agreed to decide this point
in
limine
, and the point was then argued on
the basis of the
pleadings and certain agreed historical facts. The court was
also provided
with a bundle of legislation applying to the
Caprivi Zipfel, which, for
reasons on which I need not elaborate,
is rather involved. On 12 June 1985 STRYDOM J, in a
well-reasoned
judgment, decided the point
in limine
as follows: —
"(a) Defendant's exception against the plaintiff's claim to be declared the
supreme chief of the tribes and inhabitants of the Caprivi
is upheld.
(b)
Defendant's exception
against the plaintiff's claim to be declared as the owner and/or custodian
and/or controller of all communal
land in the Caprivi Zipfel is
dismissed.
(c)
Plaintiff is ordered to pay 60%
of the defendant's costs of exeption.
(d)
Plaintiff is given leave to amend his pleadings, if so advised,
within 14 days."
5
This order did not, of course, dispose of all the matters in dispute between
the parties. Although an important issue was decided,
others were still
unresolved and would in the normal course have been determined at the trial.
However, the plaintiff applied for
leave to appeal to the Appellate Division
against orders (a) and (c) and this was granted on 12 November 1985. A notice of
appeal
was lodged on 25 November 1985. Although this notice purported to apply
to the "whole of the judgment and orders (including the order
as to costs)"
nothing turns on this inaccuracy.
The next step which should have been taken
by the plaintiff in the prosecution of his appeal was the entering into of "good
and sufficient
security for the respondent's costs of appeal" pursuant to AD
Rule of Court 6(2). This was to be done before lodging with the registrar
copies
of the record. The period within which the record had to be lodged depended on
whether the order appealed against "was given
on an exception" within the
meaning of AD Rule of Court 5(4)(a). If it was so
6
given, the period was six weeks after the date of the order granting leave to
appeal; if not, the period was three months. Security
should therefore, at best
for the plaintiff, have been given by 12 February 1986. However, the plaintiff's
attorney, Mr. H F E Ruppel
of the firm of Lorentz & Bone, Windhoek, was
under the impression that security for a respondent's costs in an appeal had to
be entered into only in the event of a court's order to that effect. This was a
common misapprehension prior to the decision of this
court in
Klipriviersoog
Properties (Edms) Bpk v. Gemeenskapsontwikkelingsraad
1987(2) SA 117 (A).
See the
Klipriviersoog
case at p 122 G-I and
Salandia (Pty) Ltd v.
Vredenburg-Saldanha Municipality
1988(1) SA 523 (A) at p 531 A-E. Mr. Ruppel
consequently proceeded to prepare and file the record of the proceedings without
having
furnished security. Eventually the matter was set down for hearing in
this court as an appeal on 20 February 1987.
Judgment in the
Klipriviersoog
case was delivered on 10 November 1986.
On 30 December 1986 the defendant's
7
Bloemfontein attorneys sent a letter to the plaintiff's Bloemfontein
attorneys concerning security for the defendant's costs of appeal.
This letter,
after referring to the judgment in the
Klipriviersoog
case, recorded that
the plaintiff had made no provision for security for costs and stated that the
defendant's Windhoek attorneys
had given instructions that their client would
under no circumstances condone or waive any of his rights to security. Mr.
Ruppel
received a copy of this letter", under cover of a letter from his
Bloemfontein correspondents, on 8 January 1987.
From that date he was aware
that security should have been provided, and I assume that he knew, as a glance
at the Rules of Court
would have informed him, that this should have been done,
at best for him, by 12 February 1986, some eleven months earlier. He was
also
aware, as appears from a letter written by him to the defendant's attorneys on
15 January 1987, that an application for condonation
of the late entering into
security was necessary. It is in the light of this knowledge
8
on his part that his further conduct in this matter is to be judged.
In
his affidavit in support of the plaintiff's application for condonation Mr.
Ruppel states that, on receipt of the copy of the letter
of 30 December 1986, he
immediately informed the plaintiff about this development, and attempted to
discuss the matter with the defendant's
attorney. He managed to speak to the
latter on 13 January 1987. The defendant's attorney reiterated that he was not
prepared to waive
security on behalf of his client. Then Mr. Ruppel took steps
to reach agreement on the amount of the security to be furnished for
the
defendant's costs of appeal. As agreement could not be reached between him and
the defendant's attorney, the matter was referred
to the Registrar of the South
West Africa Supreme Court. In the second half of January 1987 the registrar
fixed the amount to be
secured at R10 000.
The plaintiff was informed by telegram on 8 January 1987 that security was
required to be furnished, and on 23
9
January 1987 he was advised that the registrar had fixed the
amount
thereof at R10 000. On 26 January 1987 the plaintiff
sent a telegram to his
attorneys asking that he be allowed until
30 January 1987 to make the
payments required by them. However,
on 29 January 1987 the plaintiff's
attorneys informed him by
telegram that they were withdrawing as his
attorneys of record.
This telegram was followed by a letter, dated the same
day, in
which the plaintiff's attorneys stated the following,
inter
alia
:
"The decision to finally withdraw as your attorneys of record was reached very
reluctantly and only after very careful consideration
of all the relevant
factors pertaining to that decision.
We were running out of time regarding the preparation for the appeal. This
applies also to the application for condonation for the
late filing of security
for respondent's costs of appeal.
Closely related to this was the fact that you failed to provide us with
sufficient cover for our costs, which would naturally include
substantial
disbursements to Counsel and our Bloemfontein correspondents. We were also not
provided with cover for security, which
was fixed, as you know, in an amount of
R10 000,00, and which you were required to furnish in terms of
the
10
Appellate Division Rules. Despite numerous reminders, requests and
communications to you, we received no satisfactory response from
you. An
aggravating factor was the fact that you made previous promises for payment of
the required deposit, which were then not
honoured."
The plaintiff replied to this letter on 5
February
1987, explaining why funds had not been
forthcoming. This
letter ended as follows (the Khuta, to which reference is made
in the letter, is the tribal authority of the Basubia tribe, of
which the
plaintiff is the chief):
"As for now this Khuta has no alternative Attorneys. We are still looking to you
for understanding and mercy, normalise the relationship.
To this effect this
Khuta is sending a high powered delegation to take up serious and binding
discussions with you. All required
costs shall be discussed. We shall look for
alternative Attorneys after we have exhausted these new efforts.
This obviously shall lead to the adjournment of the case as shall be arranged
with the new Attorneys. We cannot proceed with the
case unrepresented.
Your good understanding in this matter shall be highly appreciated."
Despite the reference in the letter to the
11
of the case, no steps were taken to have the appeal postponed
or removed from the roll, and it was duly called on 20 February 1987.
There was,
of course, no appearance on behalf of the plaintiff (appellant). The court
ordered that the matter be struck from the
roll inasmuch as no security had been
entered into in terms of the Rules of Court.
It does not appear from the
papers that the meeting between the Khuta and the plaintiff's attorney,
contemplated by the plaintiff's
letter of 12 February 1987, took place. After
this letter nothing seems to have been done until the Chief Justice, faced with
a matter
which was apparently dormant, caused the following letter to be sent to
the plaintiff's Bloemfontein attorneys on 25 March 1987:
"
APPèL : JOSHUA M. MORALISWANI vs ROBERT MUHINDA
MAMILI
1.
Die bogemelde appèl
is op 20 Februarie 1987 van die rol geskrap as gevolg van die feit dat die
Appellant nie sekuriteit gestel
het ingevolge die hofreels
nie.
2.
Sy Edele die Hoofregter het my dit
opgedra dat die Appellant in kennis gestel moet
word
12
dat hy binne drie maande, eindigende 26 Junie 1987, moet
aandui indien hy gaan voldoen aan die reëls van die hof naamlik om
sekuriteit
te verskaf en die nodige kondonasie-aansoek gaan liasseer. By gebreke
daaraan sal die afskrifte van die oorkondes vernietig word
en dit sal beskou
word dat die Appellant nie voortgaan met sy appèl nie.
3. Geliewe hierdie kantoor gepas in te lig van die Appellant se
sienswyse."
I should perhaps at this stage state the obvious, namely that this letter was
not an invitation to the plaintiff to proceed with the
appeal, nor an intimation
that if security were lodged by 26 June 1987, condonation would be granted. The
only purpose of the letter,
clearly, was to enable this court to obtain some
certainty as to the plaintiff's intentions for the sake of its own
administrative
arrangements.
Regarding this letter and his reaction thereto,
the plaintiff states the following:
"9.
During April 1987 your petitioner was informed of Your Lordship's direction that
your petitioner should indicate by not later than
26 June 1987 whether he
intended to comply with the Honourable Court's
Rules
13
in regard to the furnishing of security. Your petitioner, who can only reach
decisions in matters of the magnitude of the instant
one, in a meeting with the
full Khuta, the tribe's principal authority, consisting of senior tribesmen from
all parts of the Caprivi
inhabited by members of the Masubia Tribe. Messengers
had to be sent to carry the instructions for an extraordinary meeting of the
Khuta to the far reaches of the Caprivi. When the Khuta sat, it was decided that
your petitioner's attorneys should be asked to formally
reinstate themselves as
attorneys of record for your petitioner in this appeal and that everything
possible should be done to ensure
that the appeal in this Honourable Court could
proceed.
10. Sufficient funds had already been raised shortly before the date on which
the appeal was to be heard initially: however, the
funds only reached your
petitioner's attorneys in Windhoek after the said attorneys had already ceased
to act on behalf of your petitioner,
and in any event too late for the
preparation of a petition to Your Lordship for condonation of your petitioner's
failure to furnish
the required security timeously."
It is to be noted that the convening of the Khuta
was
necessary, according to the plaintiff, for a
decision concerning
the further prosecution of the appeal,-and the decision
which was
in fact taken was that everything possible should be done
to
ensure that the appeal could proceed. When the plaintiff then
14
continues by saying that "sufficient funds" had already been
raised shortly before the date on which the appeal was to be heard initially,
he
clearly means sufficient funds to give effect to the Khuta's decision. In the
context this would include funds to provide security
as well as funds to cover
the attorneys' fees and expenses. It would appear, therefore, that prior to 20
February 1987 the plaintiff
was financially able to engage or re-engage
attorneys in order to proceed with the appeal, but did nothing about it until
shaken
into action by the events following upon the registrar's letter of 10
April 1987. And the fact that the Khuta had to be convened,
suggests that the
reason for the inaction was that there was no existing decision to proceed with
the appeal.
After the meeting of the Khuta, referred to by the plaintiff in
the above quoted passage, a delegation of the Khuta consulted Mr.
Ruppel in
Windhoek, and he explained the position to them. On 15 June 1987 Mr. Ruppel
received a telegram instructing him to apply
for condonation. He secured a
new
15
power of attorney authorizing him to act on behalf of the plaintiff. On 24
June 1987 he reached agreement with the defendant's attorneys
on the manner in
which security was to be provided. On 26 June 1987 he caused to be lodged with
the registrar of this court a notice
of reinstatement, a power of attorney, and
a letter relating to security.
As appears from the above, security was in the
result entered into more than a year and four months too late. The plaintiff and
his
attorneys knew that this delay required
condonation and that a petition
in this regard should be filed. Such a petition was filed with the registrar of
this court only on
10 February 1988, some seven and a half months after security
was in fact entered into, and almost exactly two years (assuming everything
in
the plaintiff's favour) after it should have been entered into. What explanation
is offered for the further delay between June
and February? Mr. Ruppel says the
following in this regard:
"3.6. It was my understanding that the
petition
16
would not be considered separately by this Honourable Court, but that it
would be heard and determined simultaneously with the appeal
itself. I
accordingly did not understand there to be any urgency in relation to the
submission of the petition for condonation of
the petitioner's non-compliance
with the Rules relating to the furnishing of security for respondent's costs of
appeal.
3.7
Towards the end of August
1987 I was requested by my correspondents in Bloemfontein to urgently forward
the petition for condonation.
Due to pressing work, which I was unable to
postpone, I simply could not manage to draft the petition for consideration by
your petitioner
until late in November this year.
3.8
I regret any inconvenience which the resulting delay may have
occasioned, and
humbly crave that my conduct in this
regard be condoned by this Honourable Court."
Several points call for comment. Mr. Ruppel
expresses
an understanding that the petition would
be heard and determined
"simultaneously with the appeal itself". This is a
miscon-
ception. The true position is that a date for the hearing of
an
appeal cannot be fixed until rule 6 has been complied with
or
condonation for non-compliance granted (Rules 7.1 and 13).
17
Indeed there is strong authority for the proposition that failure to comply
with rule 6 causes an appeal to iapse, and that condonation
by this court is
needed to revive it (see
Vivier v. Winter
;
Bowker v. Winter
1942
AD 25
;
Bezuidenhout v. Dippenaar
1943 AD 190
at p. 192 and
United
Plant Hire (Pty) Ltd v. Hills and Others
1976(2) SA 697 (D & C) at pp.
699 C to 700 A. See also
Waikiwi Shipping Co. Ltd. v. Thomas Barlow &
Sons (Natal) Ltd
1981(1) SA 1040 (A) at 1049 B-C and
S v. Adonis
1982(4) SA 901 (A) at p. 907 F-G dealing with the related subject of an
appellant's failure to file the record in time).
In the absence of a petition
for condonation there was accordingiy nothing for this court to consider, and,
in particular, no appeal
could be heard until condonation had been granted.
This, incidentally, was the reason why the matter was struck from the roll on
20
February 1987. Had there been an appeal before the court on 20 February 1987,
the usual course would have been to dismiss it for
non-prosecution in terms of
Rule 7(2) and this course might well have been followed.
18
Mr. Ruppel's understanding was therefore erroneous. There was no way in which
the petition for condonation could be heard simultaneously
with the appeal
itself. At most the parties' arguments on the petition (and, in particular,
their contentions on the petitioner's
prospects of success) could have been
treated as constituting also their arguments on appeal if condonation were to be
granted. That,
however, is another matter, and the possibility that this course
might be followed did not afford any reason for supposing that the
submission of
a petition for condonation was not a matter of urgency.
The reason why Mr.
Ruppel considered that submission of a petition was not urgent
conséquently cannot bear scrutiny. And, in
any event, he was requested
towards the end of August 1987 in a letter from his correspondents in
Bloemfontein "to urgently forward
the petition for condonation". This letter is
one of the few relevant documents of which a copy is not attached to the papers.
The
inference may fairly be drawn that it expressed a high degree of urgency.
Nevertheless "pressing
19
work" prevented Mr. Ruppel from drafting the petition until late November
1987. The petition itself is a relatively simple document
of eleven pages. It is
verified on affidavit by the plaintiff. In addition there is attached to it an
affidavit by Mr. Ruppel, from
which I have quoted certain extracts. These were
the only documents that required drafting. They could not have taken long to
prepare.
In my view it is not a sufficient explanation to say that "pressing
work", of which the nature and extent are unspecified, made it
impossible to
perform this undemanding task.
Moreover it must be remembered that Mr. Ruppel
did not practise on his own. The firm of Lorentz & Bone had at that time,
according
to copies of letter heads attached to the papers, six partners, of
whom Mr. Ruppel was one. It is probable that the firm engaged
articled clerks
and assistants. Mr. Ruppel does not mention in his affidavit that he made any
attempt to enlist the aid of any other
member or employee of his firm to assist
him with the urgent task of drafting the petition, or to
20
lighten his work load in some other way so as to enable him to
attend to it himself.
But the matter does not end there. In late November,
Mr. Ruppel states, he was able to attend to the drafting of the petition. The
petition and verifying affidavit were signed only on 22 December 1987. Mr.
Ruppel's own affidavit was signed and sworn to more than
a month later, on 25
January 1988. No explanation at all is offered for these further delays. The
petition was, as I have stated,
eventually filed on 10 February 1988.
On a
conspectus of the history of this matter it appears that there were gross delays
in the provision of security pursuant to Rule
6 and in the filing of a petition
for condonation. Up to January 1987 this delay is explained by the uncertainty
which existed prior
to the decision of this court in the
Klipriviersoog
case (
supra)
. The plaintiff's default during this period may be regarded
as venial (see the
Klipriviersooq
case,
loc.cit.
and
Salandia
(Pty) Ltd v. Vredenburg-Saldanha
21
Municipality
,
loc. cit.
However, the plaintiff and his
attorneys became aware early in January 1987 that the provision of security was
necessary and overdue.
It has often been heid that, whenever a prospective
appellant realizes he has not complied with a rule of court, he should, apart
from remedying his default immediately, also apply for condonation without
delay. See
Rennie v. Kamby Farms (Pty) Ltd
1989(2) SA 124 (A) at p. 129 G
and earlier cases there quoted. This applies a
fortiori
. in the present
case, where the non-compliance was of such long standing. The plaintiff and his
attorneys did not heed this precept.
In particular there are two periods of
delay for which no acceptable explanation has been given. The first was caused
by inaction
on the part of the plaintiff; the second by his attorney.
As far
as the plaintiff was concerned: he knew on 8 January 1987 that security had to
be provided. He also knew that his attorneys
required funds in order to provide
security and, generally, to proceed with the appeal. On 29 January 1987
22
his attorneys withdrew because funds were not forthcoming. Before 20 February
1987 the plaintiff had raised sufficient money to proceed
with the appeal, but
he took no steps to engage new attorneys or to re-engage his former attorneys
until he was in effect presented
with an ultimatum by the Chief Justice in early
April 1987. Even then he took until 15 June 1987 before giving Mr. Ruppel
instructions
to proceed with the application for condonation. As noted above, it
seems probable that for some months during the first half of
1987 the plaintiff
had no firm intention of continuing with the appeal and that this accounts for
the delay during this period.
As far as Mr. Ruppel is concerned: he was
authorized to proceed with an application for condonation on 15 June 1987.
Nevertheless
the petition was not filed before 10 February 1988. The
explanations given by him for this delay, to the extent to which he gave
any,
cannot stand analysis, as I have endeavoured to show.
The effect of the delays in the present matter has been
23
particularly serious. The litigation between the parties
commenced as long
ago as 18 April 1983, and the court
a quo
gave
judgment in the present
matter on 12 June 1985. Various issues
between the parties must still be
determined by trial, but this
cannot be done until finality concerning the
plaintiff's proposed
appeal has been reached. In these circumstances the
extent of
the delays, and the failure of the plaintiff or his attorney
to
give a satisfactory explanation for them, are such that
condonation
ought, in my view, to be refused. The fact that
much of the blame may be
attributed to the plaintiff's attorneys
does not, in my view, detract from
this conclusion. As was
stated in
Salooiee and Another NNO v. Minister of
Community
Development
1965(2) SA 135 (A) at p. 141 C
"There is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the
explanation tendered.
To hold otherwise might have a disastrous effect upon the observance of the
Rules of this Court."
See also
Immelman v.
Loubser en h Ander
1974(3) SA 816 (A) at p.
824 A-B and
P E Bosman Transport Works Committee and Others v.
24
Piet Bosman Transport (Pty) Ltd
1980(4) SA 794 (A) at p. 799 F
in
fin
.
In what I have said above, I did not deal with the plaintiff's
prospects of success on appeal. There are two reasons for this. Firstly,
there
is the form of the petition.
As was stated in
Rennie v. Kamby Farms (Pty)
Ltd
(
supra
) at p. 131 E, it is advisable, where application for
condonation is made, that the petition should set forth briefly and succinctly
such essential information as may enable the court to assess the appellant's
prospects of success. This was not done in the present
case: indeed, the
petition does not contain even a bare averment that the plaintiff enjoys any
prospect of success onappeal. But
secondly, and in any event, the circumstances
of the present case are such that the court should, in my view, refuse the
application
irrespective of the prospects of success.
(
Rennie v. Kamby Farms (Pty) Ltd
,
supra
, at p. 131 I-J and
earlier authorities there quoted).
In the result, and for the reasons set out above,
the
25
court made the following order on 3 May 1989:
The application for condonation is refused with costs, such costs to include the
respondent's costs as on appeal.
E M GROSSKOPF,
JA
HOEXTER, JA
HEFER, JA MILNE, JA Concur
EKSTEEN, JA