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2024
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[2024] ZAKZPHC 105
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Thamodran Gouden t/a Trev's Auto v Crawdord Properties CC (AR421/2023) [2024] ZAKZPHC 105 (20 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR421/2023
In the matter between:
THAMODRAN
GOUNDEN T/A TREV’S
AUTO
APPELLANT
and
CRAWDORD
PROPERTIES CC
RESPONDENT
ORDER
On
appeal from
: the Magistrates’
Court for the District of eThekwini North, held at Verulam
(Magistrate O Hoskins sitting as court of first
instance):
1.
The
application for the adjournment of
the appeal is refused with costs;
2.
The application for condonation is dismissed with costs;
3.
T
he appeal noted by the appellant on 19
October 2023 in the Magistrate's Court for the district of eThekwini
North, held at Verulam,
under case number 4812/2023, is deemed to
have lapsed;
4.
The appellant is directed to pay the
respondent's costs in the appeal on an attorney and client scale,
such costs to include the
costs of the opposition to the application
for condonation and the application for the adjournment heard on 16
August 2024.
JUDGMENT
Henriques
J (R Singh AJ concurring):
Introduction
[1]
This appeal
relates to an appeal against the entire
ex
tempore
judgment delivered on 30
June 2023 by Magistrate O Hoskins. The grounds of appeal are set out
in the notice of appeal dated 19
October 2023.
[2]
On 7 August 2024, the appellant delivered an
application for condonation seeking to condone the late noting of its
appeal, the late
prosecution of its appeal, and the late filing of
its heads of argument.
[3]
On 15 August 2024, a day prior to the appeal
hearing, the appellant served an application for an adjournment of
the appeal to enable
it to place all the bundles which were supposed
to be part of the appeal record before the court. This application
for an adjournment
was not filed in court and was brought to the
court’s attention at the hearing of the appeal by Ms Mathiba,
who appeared
for the appellant at the appeal hearing. Both
applications are opposed by the respondent. Mr Eades, who appeared
for the respondent,
indicated that the condonation application would
be dispositive of the matter.
[4]
When the appeal was called on 16 August 2024,
we first heard argument on the application for condonation and the
application for
an adjournment. Given that the application for an
adjournment was not filed in court and for reasons that will become
apparent
hereinafter, this court dealt with the application for
condonation. I may add that, to some extent, the basis for the
adjournment
overlapped with those of the application for condonation.
[5]
It warrants mentioning at this stage that in
the court
a quo,
the appellant was represented by Mr Andile Thusi, who was instructed
by SH & Associates, specifically Ms Harrilal. At the hearing
of
the appeal, Ms Mathiba appeared, duly instructed by Ms Harrilal of SH
& Associates.
Chronology
leading up to the appeal hearing
[6]
It is necessary for this court to set out the
chronology leading up to 16 August 2024, which formed the background
against which
the relief had to be considered to determine whether or
not condonation ought to be granted.
[7]
The trial in the court
a
quo
proceeded over two days, on 22
May 2023 and 1 June 2023. On 30 June 2023, the presiding magistrate
delivered an
ex tempore
judgment at approximately midday. It is evident from the transcript
of the proceedings that the reason for the delay in the handing
down
of the judgment was due to the fact that the appellant’s
advocate, Mr Thusi, emailed his heads of argument to the magistrate
at 17h40 the night before. The magistrate only learnt of the heads in
the morning when he attended court and was only able to consider
them
then.
[8]
The delay in the time for the delivery of the
judgment was for the presiding magistrate to consider the heads of
argument prior
to the judgment being handed down. Subsequent to
the delivery of the
ex tempore
judgment and on 6 July 2023, the appellant's attorneys requested
reasons. On 7 July 2023, the magistrate responded in terms of
rule
51(8) of the Magistrates’ Court rules (‘MC rule’),
in which he indicated that he had nothing further to
add and abided
by his
ex tempore
judgement
handed down in open court on 30 June 2023.
[9]
Despite this response and the handing down of
the
ex tempore
judgment, on 10 and 11 July 2023, the appellant's attorneys requested
a written judgment from the magistrate as well as from the
clerk of
court. On 14 July 2023, the appellant was directed to obtain a
transcript from the clerk of court. On 17 July 2023, Gauteng
Transcribers were requested to transcribe the record. On 18 July 2023
and 10 August 2023, the appellant's attorneys of record wrote
to
Gauteng Transcribers, following up on the request for the transcript.
[10]
On 11 August 2023, Gauteng Transcribers
provided a quotation for the transcript and requested payment. On 8
September 2023, only
a portion of the quoted amount was paid to
Gauteng Transcribers to obtain the transcript. On 11 September 2023,
the attorneys,
from their own pocket, paid the balance owing in terms
of the quotation. The transcript was received from Gauteng
Transcribers
on 20 September 2023 and a notice of appeal was filed on
19 October 2023.
[11]
On 27 November 2023, the appellant filed a
judgment bundle with the registrar of the KwaZulu-Natal Division of
the High Court, Pietermaritzburg
relating to the appeal. On the same
day, the registrar issued directives relating to the filing of heads
of argument. It is common
cause that the appellant’s heads of
argument were due on 5 February 2024 and were delivered to the
appellant’s attorneys
by counsel
on
6 February 2024. Despite this, the heads of argument were only filed
on 12 February 2024 and on the same day, the appellant's
attorneys
filed bundles A and B with the registrar.
[12]
In the interim and on 19 February 2024, the
respondent delivered its heads of argument. Therein, it took issue
with the late noting
of the appeal as well as the late prosecution of
the appeal. It also raised concerns about the state of the record
filed. Thus,
as early as 19 February 2024, the appellant's attorneys
were alerted to the fact that the appeal had been prosecuted late and
further
that the notice of appeal had lapsed.
[13]
Correspondence was exchanged between the
parties after the filing of the respondent’s heads of argument.
On 14 February 2024,
the appellant's attorneys wrote to the
respondent's attorneys indicating that the only bundles that have
been filed were those
filed as per counsel’s advice, as the
only documents the appeal court had to read were those referenced in
the heads of argument.
[14]
This was followed up with a further email
exchange on 5 and 8 March 2024, in which it was drawn to the
attention of the appellant's
attorneys that it was their duty to
ensure that the court file was in order. The response was that ‘[w]e
have only filed
bundles in (as below) required for the Court to read
in terms of the appellant’s heads of argument as per our
Counsel’s
advices’. Subsequently, on 19 March 2024, the
appellant's attorneys filed bundles D and I with the registrar.
[15]
On 25 July 2024, the appellant's attorneys were
advised that the bundles were not filed in the court file. Similarly,
on 1 August
2024, email correspondence was addressed to the presiding
judge’s registrar, indicating that the court file was not in
order,
and that a full record had not been filed in court. The
appellant’s attorneys requested an opportunity to peruse the
court
file and rectify the oversight. Access was allowed to the court
file and when attempts were made by the appellant's attorneys to
file
the outstanding bundles, such request was refused. On 8 August 2024,
the appellant's attorneys of record attended court and
attempted to
file the outstanding bundles which constituted the full record. This,
similarly, was refused.
[16]
The appellant’s attorneys deposed to an
affidavit on 7 August 2024. Ms Harrilal sought the condonation and
reinstatement of
the appeal and indicated that the notice of appeal
and the record were not lodged timeously. There is no explanation in
the affidavit
relating to the actual merits of the matter and the
appellant's prospects of success in relation to the appeal.
[17]
She indicated that on 19 October 2023, she
lodged a notice of appeal and record at the Verulam Magistrates’
Court. She had
calculated the
dies
for the lodging of the notice to appeal from the date of receipt of
the transcript of the written judgment by Gauteng Transcribers,
being
20 September 2023. She indicated that she was aware that there was an
ex tempore
judgment
delivered on 30 June 2023 and subsequent to this, on 6 July 2023, she
requested reasons for the judgment, which she filed
at the Verulam
Magistrates’ Court.
[18]
On 7 July 2023, she received an email from the
clerk of the civil court, enclosing the MC rule 51(8) notice from the
magistrate,
indicating that he would abide his judgment and that a
judgment was delivered in open court on 30 June 2023. She submitted
that
at this stage, they had not received a written judgment. A
follow-up email was sent on 10 July 2023 to the magistrate requesting
a written judgment, and on 11 July 2023, a request was filed with the
Verulam Magistrates’ Court for the written judgment.
A response
was received on 14 July 2023, directing the appellant's attorney to
obtain a transcript.
[19]
It was on 17 July 2023 that she emailed Gauteng
Transcribers requesting the transcript. She completed and emailed the
form which
had been sent by Gauteng Transcribers. From 18 July 2023
to 10 August 2023, she exchanged email correspondence with Gauteng
Transcribers
relating to the recordings. A quotation was only
received from Gauteng Transcribers on 11 August 2023, and payment was
requested.
A further delay took place from 11 August 2023 up to and
including 8 September 2023, as only a proportion of the amount quoted
was paid. The shortfall of R453 was covered by her offices and
subsequently paid three days later on 11 September 2023.
[20]
Her offices then received the transcript on 20
September 2023, which was then forwarded to counsel with a request
for the notice
of appeal and condonation application to be drafted.
Counsel on brief at the time, Mr Thusi, advised her that a
condonation application
was not necessary, as they had only received
the written judgment of the magistrate on 20 September 2023. On 19
October 2023, approximately
a month later, a notice of appeal was
served at the Verulam Magistrates’ Court. On this day, she was
accompanied by counsel
and met with the chief magistrate to explain
why a condonation application was not needed. The chief magistrate
allowed them to
file the notice of appeal and pay the security.
[21]
She submitted that the appeal was not
prosecuted within 60 days of noting it and it lapsed on 19 December
2023. Although they received
the directive from the registrar
relating to filing of the appellant’s heads of argument before
5 February 2024, her offices
only received counsel's heads of
argument on 6 February 2024, whereafter they were served but only
filed in court on 12 February
2024. She considers that the heads of
argument are only three days late. It was only when new counsel was
brought on board that
she was advised that a substantive application
for condonation was required to reinstate the appeal and to explain
the reasons
for the late prosecution of the appeal.
Analysis
[22]
Although
a court, in the exercise of its discretion, may find that an appeal
has not lapsed, an appellant must demonstrate good
cause in order for
this to occur. In any application for condonation, such litigant must
deal with the following, as quoted in
United
Plant Hire (Pty) Ltd v Hills and others,
[1]
namely: the degree of non-compliance with the rules of court and
provide an explanation therefore, its prospects of success on
appeal,
the importance of the matter, the respondent’s interest in the
finality of the judgment, the convenience of the court,
and the
avoidance of delay. When dealing with the delay, a litigant must
provide an explanation for each period of the delay.
[23]
During
argument, Mr Eades referenced
Nawa
and others v Marakala and another,
[2]
where the court had to issue a declarator that the appeal had lapsed
as a consequence of an applicant’s failure to prosecute
same.
The court took the view that a single judge of the high court had
jurisdiction to entertain such an application where the
prospects of
success of an appeal were not required to be traversed. Such issue
does not arise in this matter, as the matter served
before the appeal
court presided over by two judges. As stated,
Nawa
involved
a declaratory order that the appeal had lapsed as the necessary steps
were not taken. This matter is similar in that the
appellant has not
taken the steps necessary to have the matter properly before the
appeal court.
[24]
In relation to the fact that the appeal was
noted out of time, the following is evident from the chronology and
the record filed.
On 6 July 2023, four court days after the
ex
tempore
judgment was handed down on
30 June 2023, the appellant requested reasons from the magistrate in
terms MC rule 51(1). Rule 51(1)
allows a party to request a judgment
in writing. This was not necessary as a transcript of the proceedings
ought to have been requested
as an
ex
temporae
judgment had been delivered
in court. The appellant had knowledge of this. On 7 July 2023, the
magistrate had issued a notice in
terms of MC rule 51(8) that such
notice was not accompanied by a transcript of the written reasons.
The magistrate, as well as
the clerk of court, indicated that an
ex
tempore
judgment had been handed
down and the appellant was required to obtain a transcript of the
ex
tempore
judgment.
[25]
The transcript was eventually obtained by the
appellant on 20 September 2023 and the appeal noted on 19 October
2023. At the time
when the appeal was noted, MC rule 51(3) read as
follows
‘
(3)
An appeal may be noted within 20 days
after the date of a judgment appealed against or within
20 days after
the registrar or clerk of the court has supplied a copy of the
judgment in writing to the party applying therefor,
whichever period
shall be the longer.’
[3]
Consequently,
the notice of appeal had to be delivered within 20 days after the
judgment was delivered or 20 days after the registrar
or clerk of
court has supplied a copy of the judgment in writing.
Having
regard to the rule, t
he 20-day period
commenced running on 30 June 2023, the date the judgment was
delivered or on a generous interpretation, from the
date of the rule
51(8) notice, being 7 July 2023, and consequently the appeal ought to
have been noted on 4 August 2023 and not
19 October 2023.
Consequently, the noting of the appeal is 32 days late.
[26]
If one calculates the
dies
from the date of the receipt of the transcript of the judgment, the
appeal was noted on the 20
th
day. However, problems arise with that interpretation of the rule in
that the appellant was provided with a quotation for the transcript
on 11 August 2023, and only paid for the transcription on 11
September 2023, some 21 court days after the quote had been provided.
The appellant has not indicated or explained the long delay in the
noting of the appeal, save that having regard to the application,
it
appears to lay the blame at the magistrate’s door.
[27]
A further problem facing the appellant relates
to the fact that the appeal itself has lapsed. Even if this court
were to be generous
to the appellant and to consider that the appeal
had been noted timeously, this does not assist the appellant, as the
appeal has
lapsed. In terms of rule 50(1) of the Uniform Rules of
Court, an appeal must be prosecuted within 60 days of the noting of
such
appeal and unless it is prosecuted within such time frame, it
shall ‘be deemed to have lapsed’.
[28]
Uniform rule 50(4)
(a)
requires the appellant to apply to the registrar for a date for the
hearing of the appeal within 40 days of noting the appeal.
Together
with the delivery of the application for a hearing date, an appellant
is required in terms of Uniform rule 50(7) to lodge
two copies of the
full
record, including the pleadings, evidence, necessary documents and a
certificate by an attorney certifying that the record is correct.
On
receipt of such application from the appellant, in terms of Uniform
Rule 50(4)
(c)
,
the appeal is deemed to have been duly prosecuted.
[29]
If one strictly applies these rules to the
present matter, the appellant was required to file the record with
the registrar by 14
December 2023, and to prosecute its appeal on or
before 17 January 2024. In its attempt to prosecute its appeal, the
appellant
had only delivered a judgment bundle on 27 November 2023,
some 27 days after noting its appeal. The rest of the record was
filed
as follows: two bundles containing the pleadings and notices,
bundles A and B, respectively, on 12 February 2024, some 38 days
late; and the plaintiff's trial bundle and a portion of the
transcribed record, marked bundles D and I, respectively, on 19 March
2024, some 74 days late.
[30]
What still has not been delivered to complete
the record, are the following bundles utilised in the court
a
quo
, namely the discovery bundles,
bundle C; the defendant's trial bundle, bundle E; the written closing
arguments, bundle F; the respondent’s
affidavit, bundle G; and
the main portion of the transcribed record, bundle H. Consequently,
we agree with the submission of Mr
Eades that the appellant's appeal
cannot be said to have been prosecuted and has lapsed.
[31]
A further complication in the matter is that
the respondent, in its heads of argument delivered on 19 February
2024, pertinently
raised the issue of the incomplete record with the
appellant and also brought to its attention that its appeal had
lapsed. Despite
delivery and service of the heads of argument on 19
February 2024 and the email correspondence exchanged in the course of
February
and March 2024, the appellant delayed until 7 August 2024 to
institute its application for condonation.
[32]
It
is useful at this juncture to recall the remarks of Heher JA in
Uitenhage
Transitional Local Council v South African Revenue Service
[4]
where he held the following:
‘
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.’
[33]
Joubert
JA said the following in
Blumenthal
and another v Thomson NO and another
:
[5]
‘
This
Court has often said that in cases of flagrant breaches of the rules,
especially where there is no acceptable explanation therefor,
the
indulgence of condonation may be refused whatever the merits of the
appeal are; this applies even where the blame lies solely
with the
attorney (
Tshivhase Royal Council and Another v Tshivhase and
Another; Tshivhase and Another v Tshivhase and Another
[1992] ZASCA 185
;
1992 (4)
SA 852
(A) at 859E-F).’
[34]
At the hearing of the matter, I raised with Ms
Mathiba the issue of the lack of a proper explanation, as the
affidavit does not
deal with each and every aspect of the delay and
non-compliance with the rules. She submitted that most of the
problems were caused
as a consequence of the bad advice given by the
former counsel in the matter. When I raised concerns about the fact
that the blame
cannot be laid at the door of counsel only but the
attorney also had to bear some responsibility, the response I
received was that
it was the attorney's first appeal.
[35]
In my view, no acceptable explanation has been
forthcoming by the appellant's attorneys for the delay. There is no
explanation as
to why the attorneys did not immediately obtain the
transcript of the
ex tempore
judgment and instead delayed through addressing correspondence back
and forth requesting reasons for the judgment. Counsel had
been
briefed to attend court on 30 June 2023 when the judgment was
delivered. There is no proper explanation as to what transpired
between July and August 2023, when correspondence was exchanged
requesting the judgment from Gauteng Transcribers.
[36]
Any diligent attorney would have known that the
transcript had to be requested and would have post-haste attended at
the clerk of
court to obtain the necessary form, alternatively to
liaise with Gauteng Transcribers to obtain the quotation urgently. No
explanation
is proffered by the attorneys. There is also no
explanation, save for the fact that counsel delayed in the filing of
the notice
of appeal, for the delay from 20 September up to and
including 19 October 2023.
[37]
In addition, there is no excuse for an attorney
not familiarising themselves with the rules of court and taking
whatever steps are
necessary to ensure that a record is transcribed
but also to look at the rules themselves and see what needs to be
done in order
for a record to be complete. It is all set out in the
rules. It is a simple task of familiarising oneself with the rules of
court
and not solely relying on counsel.
[38]
However,
the delay in prosecuting this appeal is just one factor to consider.
Among the considerations is the appellant’s
prospects of
success on appeal.
In
Valor IT
v Premier, North West Province and others
[6]
the following is stated:
‘
One
of the factors that must be considered whenever condonation is sought
is the applicant's prospects of success on the merits.
It must be
borne in mind that the grant or refusal of condonation is not a
mechanical process but one that involves the balancing
of often
competing factors. So, for instance, very weak prospects of success
may not offset a full, complete and satisfactory explanation
for a
delay; while strong prospects of success may excuse an inadequate
explanation for the delay (to a point).’
[39]
As already indicated, the appellant has not
dealt with its prospects of success on appeal in its affidavits,
apart from a bald allegation
that it has prospects of success.
Despite this, and on the available record, I have considered this
aspect and am not convinced
that the appellant has any prospects of
success on appeal.
[40]
Turning
now to the request for an adjournment. It is trite that an
adjournment is not simply for the asking. Having regard to the
principles set out in
Myburgh
Transport v Botha t/a SA Truck Bodies
,
[7]
I am not satisfied that the appellant has made out a case entitling
it to an adjournment. The application for an adjournment has
not been
timeously made nor has the true reason for the appellant’s
unpreparedness been explained. In addition, the respondent
has an
interest in the finality of the matter and the prejudice cannot be
cured by a costs order.
[41]
There is simply no basis to come to the
assistance of the appellant, as no case has been made out on the
papers for condonation
to be granted.
Costs
[42]
Turning now to the aspect of costs, at the time
of argument, this court, given the conduct of the legal
representatives, contemplated
issuing a rule
nisi
calling upon the appellant’s
attorneys of record and former counsel to show cause why they ought
not to bear the costs occasioned
as a consequence of the appeal
having lapsed. These were based on the conduct of the attorneys and
the former counsel of the appellant.
Among the considerations
which informed this view was that it would be unfair to mulct the
appellant with additional costs emanating
from the lack of diligence
of its legal representatives.
[43]
Mr Eades, however, discouraged the court from
doing so as this would delay the matter and emphasised the
respondent’s interest
in the finality of the matter. In
addition he indicated that the issue of costs can be resolved between
the attorneys. Similarly,
Ms Mathiba also requested the court to
refrain from making such an order against the appellants’
attorneys and reiterated
it was her first appeal. It is most
unfortunate that the appellant has to face an adverse costs order.
[44]
Whilst I cannot issue such an order initially
contemplated without further delaying the proceedings, I trust that
the appellant’s
attorneys and former counsel will not repeat
their errors and consider not rendering fees emanating from the
appeal. To do so in
circumstances where they have not been diligent
in prosecuting the appeal would be most unfair to the appellant.
Attorneys are
also encouraged to familiarise themselves with the
relevant rules of court and not solely rely on counsel. One
also assumes
that counsel are familiar with the rules of court. To
the extent they are not or uncertain, counsel are encouraged to seek
the
advice of senior colleagues.
[45]
As the award of costs is a matter of
discretion, I have been persuaded that costs ought to follow the
result and that they ought
to be on a punitive scale.
Order
[46]
In the result the following order will issue:
1.
The
application for the adjournment of
the appeal is refused with costs;
2.
The application for condonation is dismissed with costs;
3.
T
he appeal noted by the appellant on 19
October 2023 in the Magistrate's Court for the district of eThekwini
North, held at Verulam,
under case number 4812/2023, is deemed to
have lapsed;
4.
The appellant is directed to pay the
respondent's costs in the appeal on an attorney and client scale,
such costs to include the
costs of the opposition to the application
for condonation and the application for the adjournment heard on 16
August 2024.
HENRIQUES
J
R
SINGH AJ
Case
Information
Date
of Argument:
16
August 2024
Date
of Judgment:
For
the Appellant:
Ms
Mathiba
Instructed
by:
SH
& Associates
Suite
19 Storage Unlimited
0
Highdale Road, Glen Anil
Durban
North
Tel:
081 487 3532
Email:
law@shandassociates.co.za
For
Respondent:
Mr
Eades
Instructed
by:
Larson
Falconer Hassan Parsee
93
Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
Tel:
031 534 1600
Email:
Tamara.Botha@lfhp.co.za
[1]
United
Plant Hire (Pty) Ltd v Hills and others
1976 (1) SA 717
(A) at 720E-G.
[2]
Nawa
and others v Marakala and another
2008
(5) SA 275 (BH).
[3]
MC r
ule
51(3) was amended by GN R4476,
GG
50272, 8 March 2024, with effect from 12 April 2024.
[4]
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6.
[5]
Blumenthal
and another v Thomson NO and another
[1993] ZASCA 190
;
1994
(2) SA 118
(A) at 121I.
[6]
Valor
IT v Premier, North West Province and others
[2020] ZASCA 62
;
2021 (1) SA 42
(SCA) para 38.
[7]
Myburgh
Transport v Botha t/a SA Truck Bodies
1991
(3) SA 310
(Nm).