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[1989] ZASCA 149
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Ferreira v Ntshingila (552/87) [1989] ZASCA 149; [1990] 2 All SA 47 (A) (21 November 1989)
1.
Case no 552/87
/MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between
GEORGE FREDERICK FERREIRA
Appellant
and
MARIA
NTSHINGILA
Respondent
CORAM:
HEFER, NESTADT JJA et FRIEDMAN AJA.
HEARD:
21 NOVEMBER 1989.
JUDGMENT DELIVERED:
21 NOVEMBER 1989.
REASONS FILED:
30
NOVEMBER 1989.
REASONS FOR JUDGMENT
FRIEDMAN AJA.
/
2/...
2.
FRIEDMAN AJA:
On 21 November 1989 this Court made an order dismissing with costs an
application for the condonation of the late noting of an appeal
and an
application for the condonation of the late filing of the record and the late
furnishing of security, and ordering that the
costs were to include the
respondent's costs of appeal. The Court indicated that reasons would follow.
These are the reasons.
On 17 February 1980 Paulus Mahlangu
(hereinafter referred to as the "deceased") was shot and killed by the
applicant. The respondent who was a partner to a customary
union as defined in
section 35 of the Black Administration Act 38 of 1927, with the deceased, sued
the applicant for damages in the
3/...
3.
Witwatersrand Local Division in her personal capacity as well
as in her capacity as mother and natural guardian of the three minor
children
born of the customary union between herself and the deceased. For convenience I
shall refer to the applicant and the respondent
as defendant and plaintiff
respectively.
The defendant admitted in his plea that he had shot and killed
the deceased, but pleaded that he had acted in self-defence.
The only issue at the trial was whether the killing of the deceased was
justified. The trial court (COETZEE AJP) f ound that it was
not and granted
judgment in favour of the plaintiff in the agreed sum of R13 022-00 with costs.
An application for leave to appeal
against this judgment was refused by the
4/...
4.
court a
quo
but on petition to the Chief Justice, leave
to appeal to this Court was granted.
The plaintiff failed to file his notice
of appeal timeously. He also failed to file the record or to furnish security
within the time
limits prescribed by the rules of court. His applications to
condone the late noting of the appeal as well as the late filing of
the record
and the late furnishing of security, were opposed by the plaintiff.
It was
common cause at the trial, and rightly so in yiew of the decision of this Court
in
Mabaso v Felix
1981(3) SA 865 (A), that the onus was on the defendant
to prove that the fatal shooting of the deceased was justified.
The learned
judge found that the deceased's attack upon the defendant was unlawful. He
was,
5/...
5.
however, not satisfied that there was no other reasonable
alternative open to the defendant, except to kill the deceased. Judgment
was
accordingly granted in favour of the plaintiff with costs, on 20 November
1985.
The history of the matter from the date of judgment until leave to
appeal was obtained, sets the scene for what subsequently occurred
and what led
to the defendant having to make two applications for
condonation. On 2
December 1985 the defendant's
attorneys, who were at that stage Messrs Goosen and
Goosen of Johannesburg, filed a notice of application
for leave to appeal.
On 5 December 1985 the registrar
of the Witwatersrand Local Division wrote to
the
defendant's attorneys advising them that a date for the
hearing of the
application for leave to appeal would
6/...
6.
not be arranged until the judgment had been transcribed and
filed in the court records. The defendant's attorneys were told to advise
the
registrar as soon as the judgment was filed. On 16 January 1986, by which date
Messrs Goosen and Goosen had been replaced by
Mr Clifford St John Wills, the
latter wrote to the plaintiff's attorneys stating that he had been instructed by
the defendant to
proceed with an appeal against the judgment of the court a
quo
. By 3 March 1986 nothing had been done in the matter; the plaintiff's
attorneys accordingly addressed a letter to defendant's attorney
on that date
enquiring what steps were being taken to prosecute the appeal. This letter met
with no response. The plaintiff's attorneys
accordingly addressed a further
letter to the defendant's attorney, dated 27 May 1986, enquiring
7/...
7.
what had been done and requesting an urgent reply.
This letter likewise met with no response. The plaintiff's attorneys accordingly
addressed a further letter to the defendant's attorney on 8 July 1986 stating
that they would be pleased to learn, as a matter of
urgency, what steps had been
taken with regard to prosecuting the appeal. The plaintiff's attorneys stated
further:
"Should we not hear from you within seven (7) days from date hereof, we shall
apply to the Court for leave to execute on the judgment
pending the outcome of
the appeal".
On 29 July 1986 the defendant's
attorney, Mr Wills, advised Mr Hoyland of plaintiff's attorneys, telephonically,
that the defendant
intended to proceed with the appeal but that he was waiting
for the
8/...
8.
defendant to supply him with funds. On 30 July 1986
Mr
Hoyland addressed a letter to the defendant's attorney referring to the
telephone conversation of the previous day and stating:
"We have received á memorandum from the Supreme Court to the effect that
the application for leave to appeal will not be arranged
until the judgment has
been transcribed and filed in the Court Records. Should we not receive
confirmation from yourselves that the
judgment has been transcribed and filed by
no later than the 29th August 1986 we shall forthwith apply to execute on the
judgment
pending the appeal. Kindly give this matter your most urgent
attention."
Notwithstanding the defendant's
attorney's intimation that he intended to proceed with the appeal
9/...
9
and notwithstanding Mr Hoyland's threat to apply for leave to execute on the
judgment, nothing was heard from the defendant's attorney.
Mr Hoyland
accordingly addressed a further letter dated 1 October 1986 to the defendant's
attorney, advising him that as he had not
received any indication that the
judgment had been filed, he was proceeding to launch an application for
execution of the judgment.
In response to this letter Mr Hoyland received a
telephone
call from one Linda Oosthuizen, an articled clerk
in the employ of the defendant's attorney, reguesting a
further extension of two weeks in order to enable the necessary steps to be
taken to prosecute the application for leave to appeal.
That request was made on
7 October 1986, as appears from Mr Hoyland's letter to the defendant's attorney
dated 24 October
10/...
10.
1986. By the latter date nothing had been done and in his
letter dated 24 October 1986 Mr Hoyland stated:
"Unless we have written confirmation from yourself that the appeal has been
proceded with, that steps have been taken to obtain a
date for the hearing of
the application for leave to appeal and that a copy of the record has been
obtained within seven (7) days
from date hereof we shall proceed without further
notice to you.
We confirm that this is our final extension and no further extensions in time
will be entertained".
The application for leave to
appeal was eventually heard on 28 November 1986 and was dismissed. In his
judgment dismissing the application
COETZEE AJP described as unsatisfactory the
fact that more than a
11/...
11.
year had elapsed since the judgment had been given. He also stated that it
appeared from the papers that the registrar had written
to the plaintiff's
attorney asking what the plaintiff's intention was and that it has taken two
months for the defendant's attorney
to reply to that letter.
The application
for leave to appeal having been refused by the court a
quo
, a petition
for leave to appeal was filed with this Court on 19 December
1986. Mr Hoyland
states in his opposing affidavit
to the application for condonation of the late noting
of the appeal that he was advised by his Bloemfontein
correspondents that
the petition would not be
considered until such time as the court a
quo
's reasons
for refusing leave to appeal had been furnished. In
view of the lengthly
delay which had already taken
12/...
12.
place he took it upon himself to obtain, at his firm's expense, a copy of the
judgment dismissing the application for leave to appeal
and forwarded it to the
defendant's attorney in order to assist in speeding the proceedings up. A copy
of that judgment was forwarded
to the plaintiff's attorney under cover of a
letter dated 16 March 1987.
On 24 March 1987 leave was granted by the Chief
Justice to the defendant to appeal to this Court. It was stated by the registrar
of
this Court in a
letter to the defendant's Bloemfontein attorneys that
leave to appeal had
been granted "onderworpe aan die nakoming van die betrokke
reëls".
According to Appellate Division Rule 5(1)(d) the defendant's
notice of appeal should have been filed within twenty-one days after
the order
for leave to
13/...
13.
appeal had been granted, i e within twenty-one days
after 24 March 1987. The defendant's attorney failed to file a notice of appeal
and failed to request the plaintiff's attorneys to grant an extension of time.
As no communication had been received f rom the defendant's
attorney by August
1987, Mr Hoyland made enquiries through his Bloemfontein correspondents and
discovered that not only had a notice
of appeal not been filed, but copies of
the record had also not been filed. He considered that the appeal was deemed to
have been
withdrawn in terms of Appellate Division Rule , 5(4) bis (b) and he
accordingly addressed a letter to the defendant's attorney advising
him of this
fact and calling upon the defendant to pay the judgment debt within seven days,
failing which a writ of execution would
be issued. The date of this letter does
not
14/...
14.
appear from the papers.
On 21 October 1987 the defendant's attorney launched an application, on
petition, for condonation
of the late filing of the notice of appeal.
Simultaneously therewith a notice of appeal was filed. Before dealing with the
facts I
feel constrained to mention that the application was presented in a
thoroughly sloppy and unacceptable manner. The petition was tagged
on at the end
of the record, the pages being numbered from 153 onwards. It was also filed
separately with the pages being numbered
from 1 onwards. The opposing and
replying affidavits were likewise each numbered from page 1 onwards. In other
words the application
as a whole was neither bound in a separate cover, nor
paginated consecutively, nor was the Court favoured with an index. This did
not
15/...
15.
facilitate the Court's task in reading the papers and assimilating the
factual issues involved.
In his petition the defendant stated that he
was without the
necessary funds to prosecute the appeal
and was indebted to his attorney in
respect of
outstanding fees relating to the trial and the petition
to the
Chief Justice. He had been informed by his
attorney that it was necessary for him to place his
attorney in funds for a continuation of the appeal.
He explained that his business as a building contractor
and part-time farmer had not been successful and that
on 24 July 1987 he had sold his farm for R56 000-00. After repayment of the
bond he was left with R8 000-00. He stated that from the
proceeds of the sale he
"has
now been able to furnish his attorney with the necessary funds to continue
with the appeal and in
16/...
16.
order to pay outstanding legal fees". He added that "it was simply a lack of
funds that caused him not to proceed with the noting
of appeal and the further
prosecution of the appeal."
An opposing affidavit was filed by Mr Hoyland in
which he set out the history of the matter as outlined above. That affidavit was
filed on 13 November 1987. A replying affidavit was filed on 19 January 1988 by
Linda Oosthuizen. She stated that she
had taken over the file in or about
January 1987.
What struck her, on perusing the file, was that "there had been
continuous difficulty in obtaining funds from Client". She went on
to state:
"At the time of taking over the file I had instructions from my principal, Mr
Clifford St John Wills, that I was not to do
any
17/...
17.
further work in the matter until such time Client had place us in funds.
From correspondence in the file it appears that the appellant was at all times
aware that funds were outstanding in the matter and
that we, as his attorneys,
were not going to proceed any further with the matter until such (sic) as we
were placed in funds".
In his opposing affidavit Mr
Hoyland had stated that the costs involved in filing a notice of appeal would
not have been significant.
In response to this statement Linda Oosthuizen stated
that -
"One has to draw a line somewhere and the line was drawn after the filing of the
petition".
She reiterated that:
"Appellant was aware of the situation and, as appears from his affidavit, he was
simply not
18/...
18.
in the position to provide us with funds".
Linda
Oosthuizen's affidavit was filed, as indicated above, on 19 January 1988. A
further petition for condonation of the late filing
of the record and the late
furnishing of security was filed almost a year later, namely on 21 December
1988. In this petition the
defendant referred to his financial position as set
out in his previous petition and referred, further, to the supporting affidavits
of
Linda Oosthuizen and one Hendrik Petrus Bensch, the
latter being
another articled clerk in the employ of the defendant's attorney, and asked that
the late filing of the record and late
furnishing of security be condoned.
By
the time the second petition was launched Linda Oosthuizen was an attorney and a
professional
19/...
19.
assistant to the defendant's attorney. She stated in her
supporting affidavit that between November 1986 and August 1987 no funds
were
made available by the defendant and that funds were finally furnished by the
defendant during September 1987 to enable her to
proceed with the petition for
condonation of the late noting of the appeal. She briefed counsel to draw the
petition. Counsel did
not, however, advise her that it was necessary to file the
record. Moreover when her correspondents in Bloemfontein wrote to her
on 26
November 1987 suggesting that an affidavit be filed in response to Mr Hoyland's
opposing affidavit, they did not mention that
copies of the record should have
been filed with the petition. She went on to state:
"I am aware that according to the rules of this Honourable
Court, after an appeal has
20/...
20.
been noted, the Appellant is required in each case to lodge copies of the record
within 3 months of the date of Order granting leave
to appeal. Had the Appeal
Court (sic) been properly noted therefore, the record should have been lodged by
the 24th June 1987".
She explained that she was
under the impression that the petition for condonation of the late noting of the
appeal would be decided
separately and that only after that matter had been
disposed of, would it have been necessary for the record to be filed. Two months
after the filing of her replying affidavit in the application for the
condonation of the late noting of the appeal, she had heard
nothing from her
correspondents or from the registrar of this Court. She again perused the rules
but could find nothing regarding
the time for the hearing of the application
21/...
21.
for the condonation of the late noting of the appeal. She
decided, however, that it would be prudent to arrange for the record to
be
prepared "to avoid any possibility of future delay with the appeal". She
accordingly on 14 April 1988 instructed Lubbe Recordings
of Johannesburg to
prepare the record for the appeal and on 28 April 1988 she was notified that it
was ready for collection. She
stated that she had never seen a record prepared
for this Court and she accepted that what Lubbe Recordings had prepared
was
correct. She was then advised by her correspondents in Bloemfontein that
the record was incomplete as only copies of the two judgments
of the court a
quo
had been furnished. She thereupon communicated with Lubbe Recordings
who advised her that there had been an oversight and that the
balance of the
record could be
22/...
22.
collected at once, which was done. She received a
letter dated 3 May 1988 from her Bloemfontein correspondents enclosing a copy of
a communication which the plaintiff's attorneys in Bloemfontein had addressed to
the registrar of this Court. That letter referred
to the fact that the record
had not been filed and that security had not been furnished. The writer stated
that the Chief Justice
had indicated that the condonation application would be
heard together with
the appeal. The letter also stated that in terms of
rule 5(4) (b), the record should have been lodged and
the provisions of rule 6 in regard to security should
have been complied with and that in terms of rule 5(4) bis (b) the defendant
must be deemed to have withdrawn his appeal. Linda Oosthuizen
stated in her
affidavit that that was the first notification that
23/...
23.
she had had to the effect that the application for the
condonation of the late noting of the appeal was to be
heard with the
appeal.
With regard to the delay in filing the record and furnishing
security, she pointed out that:
"Appellant has continually found it difficult to furnish his attorney with
sufficient funds to enable the appeal to proceed as it
should and I was
reluctant to place any further financial burden upon him, not being sure
that this was necessary".
However, after receipt of
the letter from her
correspondents dated 3 May 1988, she immediately took
steps with regard to the filing of the record and the
furnishing of security and when further copies of the
record were received from Lubbe Recordings these were
24/...
24.
sent to her correspondents in Bloemfontein on 17 May 1988.
She was advised by her correspondents, however, that once again the copies
furnished did not comply with the rules. She went on to state that at that stage
it became clear that she had insufficient funds
to cover the disbursements
involved in obtaining the necessary copies of the record. She stated that during
May 1988 she discussed
the matter of security with Mr Hoyland and that that was
subsequently settled by the person who took over the file. That person is
Mr
Bensch. She stated that "at this juncture" she handed the matter over to Mr
Wills. On a proper reading of this affidavit the words
"at this juncture"
suggest that the matter was handed over by her to her principal during May
1988.
In his affidavit Mr Bensch stated that he
25/...
25.
took over the file at the direction of Mr Wills in about July
1988. He found that the record had not been filed and that agreement
with regard
to security for costs had not been reached. He stated that the defendant was
indebted to his attorney in terms of a statement
of account drawn in May 1988,
in an amount of R2 584-07. His affidavit proceeded as follows:
"I further found that Mr Wills had
repeatedly written to
client in order to get
sufficient funds to further prosecute the
appeal
properly. After I have ascertained
the price of the record from Lubbe
Recordings
I found that it was impossible to proceed
with the requirements
of the Appellate
Division in terms of the record because there
wasn't
anywhere near sufficient funds
available to pay for it. Thereafter
further
letters were written to the appellant
and phone calls made to him to obtain
the
26/...
26.
necëssary funds.
Notwithstanding the absence of funds and in August 1988 I went ahead and ordered
the record and my firm paid the necessary costs
out of our business account in
order to get the work done. During October 1988 as appears from annexure 'A'
hereto the amount of
security for costs was settled with the Respondent's
attorneys."
(Annexure "A" is a letter dated 18
October 1988 which was addressed by Mr Bensch to Mr Hoyland.)
With regard to the first application namely
the
application for condonation of the late filing of
the notice of appeal, the
following points need to be
noted:
1. The application was preceded by an
unexplained delay in proceeding with the application
for leave to appeal. This delay covered the period
27/...
27.
from the beginning of December 1985 (when the defendant's
attorneys were advised by the registrar of the Witwatersrand Local Division
that
their application for leave to appeal would not be heard until the judgment of
the court had been transcribed and filed) until
24 November 1986 when the
defendant's attorneys were given a final seven days within which to file the
transcribed judgment.
2. There was a delay from 24 March 1987 when
leave
to appeal was granted by the Chief Justice until
21 October 1987, when the
application for condonation
of the late filing of the notice of appeal
was
launched.
3. Throughout this period of just under seven
months no
approach was made to the plaintiff's
attorneys in order to explain the
problem that existed
28/...
28.
because of the defendant's failure to place his attorney in
funds, nor was any effort made to seek the plaintiff's attorneys' consent
to an
extension of time.
4. There is no suggestion on the papers that the
defendant's attorney was not aware of the fact that
the notice of appeal had not been filed timeously and
that it would be necessary to make an application for
condonation. The defendant's attorney's attitude
was that he was simply not prepared to take any steps
because of his client's failure to pay his fees or to
place him in funds.
5. When Mr Hoyland referred to the fact, in his
opposing affidavit, that
there had been no approach to
the plaintiff's attorneys, Linda Oosthuizen's
reply was
to query whether the plaintiff's attorneys had the
power to
grant an extension of the time limits laid
29/...
29.
down in the rules. That, she said, was "a matter for
debate".
6.
Although, as appears from
Linda Oosthuizen's affidavit in the second application, the defendant's attorney
was placed in funds in
September 1987 to proceed with the application for
condonation of the late noting of the appeal, that application was not launched
until 21 October 1987. For this delay there is no
explanation.
7.
The defendant's attorney
appears to have left the matter in the hands of an articled clerk who was
obviously inexperienced in handing
an appeal of this nature. (She said in her af
f idavit that she had never seen a record prepared for this Court, from which it
may
be inferred that she has not previously handled an appeal to this
Court.)
30/...
30.
8. There is no satisfactory explanation for the
failure to
file a notice of appeal. Mr Hoyland's contention that the cost of filing a
notice of appeal would have been negligible,
was not denied by Linda Oosthuizen
in her replying affidavit. Her answer that her principal had decided to "draw
the line after the
filing of the petition", is not a satisfactory explanation.
Had he not been prepared to take this step, he should not have continued
to act
for the
defendant.
9. The defendant sold his farm on 24 July 1987.
He does not state when he received the purchase price or why it took him
until September 1987 to place his attorney in funds.
I proceed to deal with the second application.
31/...
31.
Appellate Division Rule 5(4)(b) provides, in so far as is
relevant, that -
"After an appeal has been noted in a civil case the appellant shall -
(b) within three months of
the date of an
order
granting leave to appeal ;
lodge with the registrar six copies of
the
record of the proceedings in the court
appealed from and deliver such
number of
copies to the respondent as may be considered
necessary .
. "
As indicated above a notice of appeal was filed
on 21 October 1987. Rule 5(4) is not entirely clear. The opening words of the
Rule
relate the time within which the record is to be lodged, to the noting of
an appeal, whereas sub-rule (b) fixes the time by
32/...
32.
reference to the date of an order granting leave to
appeal. If the record was required to be lodged within three months of the order
granting leave to appeal, it should have been lodged by not later than 23 June
1987 (leave to appeal having been granted on 24 March
1987). However, on the
assumption that, in a case such as the present, the reference to the noting of
an appeal in the opening words
of the rule includes a reference to the purported
noting of an appeal where that occurs in
conjunction with an application for
condonation of the
failure to note the appeal timeously, the record should
have been lodged by not later than 20 January 1988 (that being three months
after the purported noting of the appeal on 21 October
1987). The record was in
fact lodged only on 27 October 1988. Whatever impression Linda Oosthuizen may
have been under as to
33/...
33.
when the application for condonation of the late noting of
the appeal would be heard, had she consulted the Rules she would have realised
that, at best for the defendant, the record was required to be lodged within
three months of the date on which she purported to note
the appeal, ie by 20
January 1988. In any event, how she could have thought that this Court could
consider the application for condonation
of the late noting of the appeal
without access to the record (there was no
reference in the application to
the merits, except the
submission that there was "more than a reasonable
prospect of success"), is just not explained.
In his opposing affidavit to
the first application Mr Hoyland stated that the record had not been lodged and
ref erred to Rule 5(4)
bis (b) which provides:
34/...
20.
"If an appellant has failed to lodge the record within the period prescribed
and has not within that period applied to the respondent
or his attorney for
consent to an extension thereof and given notice to the registrar that he has so
applied, he shall be deemed
to have withdrawn his appeal".
Mr Hoyland's affidavit in which he referred to this rule was filed on 13
November 1987. Linda Oosthuizen's replying affidavit was
filed on 19 January
1988 and in her affidavit she admitted the contents' of the relevant paragraph
in Mr Hoyland's affidavit. This
could not have failed to alert her to the rules
dealing with the lodging of the record. To suggest, as she has done, that
counsel
did not refer her, when the first application was drafted, to the
necessity for filing the record and that her
35/...
35.
Bloemfontein correspondents likewise did not tell her that it
was necessary to'file the record, is simply not acceptable, having regard
to the
fact that she had been specificly alerted to the relevant rule by Mr Hoyland's
affidavit. She stated in her affidavit that
she was aware of the rule that
"after an appeal has been noted
the appellant is required to lodge copies
of the
record within three months of the date of the order granting leave to
appeal" and that had the appeal been properly noted the record
should have been
lodged by 24 June 1987. Her assumption that it was not necessary to file the
record until the first application
for condonation had been disposed of, is not
a satisfactory explanation. In view of her inexperience she should have taken
the trouble
to enquire from counsel or from her principal, what she was required
to
36/...
36.
do in regard to the lodging of the record.
Her principal,
Mr Wills, has somewhat surprisingly not filed an affidavit. The Court is
consequently left completely in the dark as
to what supervision, if any, he was
giving to the work being done - or not done - by his articled clerk(s) in regard
to this appeal
with which he had been instructed by the defendant to proceed,
and which instruction he had, according to his letter to the plaintiff's
attorneys on 16 January 1988, clearly accepted.
With regard to the filing of security,
Appellate Division Rule 6(2) provides as follows:
"If the execution of a judgment is suspended pending appeal and, unless the
respondent waives his right to security, the appellant
shall, before lodging
with the registrar copies of the record, enter into good
and
37/...
37.
sufficient security for the respondent's costs of
appeal".
All that Linda Oosthuizen states in her
affidavit in regard to the furnishing of security is that she discussed the
matter with Mr
Hoyland during May 1988 and that the question was subsequently
settled by Mr Bensch who took over the file after she had handed it
back to her
principal. Mr Bensch took over the file at the direction of his principal in
about July 1988. All he says about the furnishing
of security is that during
October 1988 the amount of security for costs was settled with the plaintiff's
attorneys. It appears from
the letter which Mr Bensch wrote to plaintiff's
attorneys on 18 October 1988 that the plaintiff's attorneys had written to
defendant's
attorneys on 31 August 1988 and that a telephone
38/...
38.
discussion had taken place between Mr Bensch and Mr
Hoyland.
There is no explanation from Linda Oosthuizen why she discussed the
question of security only in May 1988 and why this was not done
earlier. There
is likewise no explanation why it took until October 1988 for security to be
furnished. Nor is there any explanation
as to why the defendant or his attorney
waited until 21 October 1988 in order to launch an application for condonation
of the failure
to furnish security when it must have been known as early as May
1988 that it would be necessary for such an application to be lodged.
Finally,
although Mr Bensch has annexed to his affidavit a copy of his letter dated 18
October 1988 addressed to the plaintiff's
attorneys, there is no explanation as
to
39/...
39.
what was discussed in the telephone conversation between
himself and Mr Hoyland, nor has the letter dated 31 August 1988, to which
he
refers in his letter, been placed before the Court.
It was conceded by the defendant's counsel -
and quite
rightly so - that the defendant's attorney
had been grossly negligent in the
handling of this
matter. He submitted, however, that the merits of
the
appeal were so strong that the condonation sought
should be granted.
The principles applicable to applications of this kind
have been stated many times and it is therefore not necessary to set them out
again. See, however,
Federated Employers Fire and General Insurance Co Ltd
and Another v McKenzie
1969(3) SA 360 (A), where a useful summary occurs at
362-363. Of particular
40/...
40.
relevance to the present matter are the following. An
application for condonation is required to be made as soon as the party
concerned
realises that the rules have not been complied with. See
De Beer en
'n Ander v Western Bank Limited
1981(4) SA 255(A) at 257;
Rennie v Kamby
Farms (Pty) Ltd
1989(2) SA 124(A) at 129 G. Negligence on the part of a
litigant's attorney will not necessarily exonerate the litigant. See
Salooiee
and Another, NN.O. v Minister of Community Development
1965(2) SA 135(A) at 141. See also
Finbro Furnishers
(Pty) Ltd v
Registrar of Deeds, Bloemfontein, and Others
1985(4) SA 773(A) at 787 G-H,
where HOEXTER JA referred to the "oft-repeated judicial warning that 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".
41/...
41.
An attorney instructed to note an appeal is in duty bound to
acquaint himself with the rules of the court in which the appeal is to
be
prosecuted. See
Moaki v Reckitt and Colman (Africa) Ltd and Another
1968(3) SA 98(A) at 101;
Mbutuma v Xhosa Development Corporation
Limited
1978(1) SA 681(A) at 685 A-B. Inasmuch as an applicant for
condonation is seeking an indulgence from the court, he is required to
give a
full and satisfactory explanation for whatever delays have occurred. The
explanation given in the present case was neither
full nor satisfactory. I might
add that although there was gross negligence on the part of the defendant's
attorney, the defendant
himself was not entirely blameless. He knew, from the
warnings given to him by his attorney, what the position was, but he appears
to
have shown scant regard to such warnings.
42/...
42.
The respondent's interest in the finality of his judgment, is a factor which
weighs with the court. The fact that the time for noting
an appeal has elapsed,
prima facie entitles him to adjust his affairs on that footing. See
Federated
Employers Fire & General Insurance Co Ltd & Another v McKenzie
,
supra
at 363.
As far as the prospects of success on appeal are
concerned, the appeal in the present case would not
appear to be without
merit. However where the non-
observance of the rules has been as flagrant and as
gross as in the present case the application should not be granted whatever
the prospects of success might be. See
P E Bosman Transport Works Committee
and Others v Piet Bosman Transport (Pty) Ltd
1980(4) SA 794(A) at 799;
Rennie v Kamby Farms (Pty) Ltd
,
supra
at 131 I-J.
43/...
43.
For these reasons the applications for condonation were dismissed with costs
and it was ordered that the costs were to include the
respondent's costs of
appeal.
G. FRIEDMAN AJA.
HEFER JA)
Concurred NESTADT JA)
44/...