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[1988] ZASCA 171
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Rennie v Kamby Farms (Pty) Ltd. (406/84) [1988] ZASCA 171; [1989] 2 All SA 155 (A) (1 December 1988)
Case No. 406/84
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
PETER JOHN RENNIE
Appellant
and
KAMBY FARMS (PROPRIETARY) LIMITED
Respondent
CORAM:
HOEXTER, GROSSKOPF et STEYN, JJA
HEARD:
4 November 1988
DELIVERED:
1 December 1988
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
The late Peter John Rennie was the owner of the farm
"Penavon" in the district of Richmond, Natal. Although "Penavon" itself consists
mainly of land and grazing, it is bounded by forests owned by large forestry
estates. To the north of "Penavon" is a property known
as "Kamby Farms", of
which the owner is a private company ("the defendant"). On 10 August 1981 a
large part of "Penavon" was devastated
by fast-moving forest fire, and the
plaintiff suffered conside-rable losses. In August 1982 the plaintiff instituted
an action for
damages against the defendant in the Natal Provin-cial Division.
The defendant resisted the action, and the trial came before NIENABER,
J. The
plaintiff's loss was agreed at R22 000. The broad issue in the case was thus
described by the trial Judge in his judgment:-
"The Plaintiff blames an employee of the Defendant
for
3
for ordering a 'back-burn' to be drawn along their common boundary to his north
which, he says, accounted for the damage to his property.
The Defendant admits
responsibility for starting a counter-fire but denies that the back-burn was the
true cause of the damage to
the Plaintiff's property. The back-burn was put in
to meet the very real threat of a huge fire advancing from the north. The damage
to the Plaintiff's farm, so the Defendant maintains, was caused by sparks and
incandescent material wafted aloft by the updraught
of the approaching fire, and
carried forward by the strong wind that was blowing at the time, thereby setting
the Plaintiff's farm
alight. The Defendant furthermore claims that the
'back-burn' was put in as a matter of urgent necessity and it denies that there
was any negligence on the part of any of its employees in doing
so."
Having heard the evidence at the trial (in the
coursc of which
he undertook an inspection
in loco)
and argument, the
trial
Judge on 7 August 1984 gave judgment for the defendant with
costs, including the costs of two counsel. With leave of the
Court below (which was granted on 16 October 1984) the plain=
tiff noted an appeal to this Court against the whole of the
judgment
4
judgment of NIENABER, J.
In terms of Rule 5(4)(b) of the Rules of this
Court the necessary copies of the record of the proceedings in the trial Court
should
have been lodged with the Registrar of this Court within three months of
16 October 1984. An incomplete record of the proceedings
was lodged on 21
November 1986; and on the same date a petition by the plaintiff for condonation
of the late lodging of the record
was also filed. The plain-tiff died on 18
March 1987. The application for condonation was heard on 4 November 1988 when
this Court
granted an order substituting the executor in the plaintiff's estate
as the petitioner in the application and the appellant in the
appeal.
I proceed to consider the application for condonation. On 11 December 1984
the plaintiff's Pietermaritzburg attorneys ("MBLW") applied
to the defendant's
Pietermaritzburg attorneys
("GLDL")
5
("GLDL") for an extension of the prescribed period of time
within which
the record had to be lodged with the Registrar
of this Court. On 13 December
1984 GLDL informed MBLW by
letter that:-
" we are prepared to allow you a reasonable
extension of time within which to obtain the
record from Lubbe
Recordings "
The evidence at the trial was recorded
by means of a tape-
recording machine. A firm known as Sneller Recordings ("SR")
was responsible for the transcription thereof. After the
trial but before SR had begun the transcription a number of the
tapes concerned were stolen from the office of the Registrar
of the Provincial Division in Pietermaritzburg. MBLW received
an incomplete transcription of the record from SR in April
1985. Accordingly it became necessary to fill in the gaps
in the transcribed record by a process of reconstruction from
such materials as were available. In the record before us
the
6
the evidence at the trial appears at pages 2 to 236. Counsel
informed us
that what appears at pages 82 to 92, and again at
pages 168 to 179 represents
the reconstructed portion of the
record.
On 13 September 1985 GLDL wrote a letter to MBLW
in
which,
inter alia,
the following was said:-
"Your client has now had some six months within which to reconstruct the missing
portions of the record. Kindly by return advise
-
(a)
what steps you have taken to reconstruct the missing portions of the
record;
(b)
how far you have progressed
therewith?
We have available copious notes of the evidence
at the trial as taken by our
junior counsel,
together with the notes taken by Attorney Sean
Mullins.
These are available to you if you
require same
We are furthermore not prepared to allow this matter to drag on
indefinitely....and we must therefore request you to attend to this
matter
urgently and without delay. You have already had six months and unless the
record is recon-structed by you not later than
the 15th October 1985 for
submission to the Trial Judge, applica-tion will be made for leave to execute on
the judgment in favour
of our client.
You
7
You may collect the notes referred to hereabove
from our
offices "
In a letter dated 20 September 1985 MBLW
acknowledged receipt
of the above letter and intimated that:-
"We will immediately arrange to collect the notes from your office and will
commence reconstructing the record."
According to an
affidavit by the plaintiff's Pietermaritzburg
attorney filed in support of
the petition for condonation the
notes kept by defendant's junior counsel (Mr
Broster) were
collected from GLDL "at the beginning of October, 1985". On
17 October MBLW wrote a letter to the trial Judge in which they
requested him to make his own notes of his evidence at the
trial available to the plaintiff. In support of this request
the letter stated:-
"Quite a number of persons at the trial did keep notes of the evidence, but none
of the notes are presently available other than
the notes of Advocate Broster.
The notes kept by other
persons
8
persons have apparently been lost or destroyed. We have studied Advocate
Broster's notes but these are extremely cryptic and do certainly
not contain
sufficient detail to use as a basis for reconstructing a record for an
Appeal".
The trial Judge granted the request and his
handwritten notes
of the evidence at the trial were made available to MBLW
on
22 October 1985. Meanwhile, and still on 17 October 1985,
MBLW sent a
copy of their aforementioned letter to the trial
Judge to GLDL. In the
concluding paragraph of their covering
letter to GLDL they wrote:-
"Please be patient, failing which we will have no alternative but to apply to
the Appellate Division for confirmation (condonation).
We hope that you will not
put us in the position that we have to do so, unless of course it becomes clear
that we are being dilatory
in our efforts which we assure you we are
not."
The above letter evoked a sharp response from
the defendant's
attorneys. On 22 October 1985 GLDL wrote to MBLW:-
"We have noted the comments you have made in
your
letter
9
letter to Judge Nienaber with some astonishment,
more specifically where you
stated that the
only
notes are those of Advocate Broster in that
the
notes kept by other persons have apparently been
lost or destroyed.
You have been trying to
reconstruct the record for the past
approximately
seven months and we ask you to now urgently let
us know from
what you have been trying to recon=
struct the
record "
In response to the above MBLW wrote a
further letter to GLDL
on 28 October 1985 stating that Mr Broster's notes
were in-
sufficiently detailed for an adequate reconstruction of the
record. The
letter conceded that there had been "a long delay
in dealing with this matter" which it attributed to a combina-
tion of factors which it listed. It expressed understanding
for the "frustration" experienced by GLDL but gave an assurance
"that we are now doing our utmost to put the matter right."
On 8 November 1985 GLDL addressed a letter in the following terms to
MBLW:-
"Our client considers that the appellant has had
a
10
a more than reasonable time to reconstruct and
file the record and is
accordingly not prepared
to grant any further extension for the
filing
thereof. Under the circumstances your client
will have to make a
substantive application for
condonation and it is our instructions that
such
application will be opposed "
MBLW experienced dífficulty in trying to
decipher
the trial Judge's handwritten notes which
had been made
available to them on 22 October 1985. At some time
thereafter
(the date does not appear from the petition) MBLW reguested
GLDL to assist
in this undertaking; and the latter agreed to
do so after the Christmas
vacation. On 20 January 1986 GLDL
wrote to MBLW as follows:-
"We confirm that you have delivered to us the judge's notes which we in turn
have handed to Advocate Broster with a view to reconstructing
the missing
portions of the record.
Needless to say our co-operation in reconstruc-ting the missing portions of the
record must in no way be construed as a waiver of
our client's rights, more
specifically its refusal to grant
any
11
any further extension as previously conveyed to
you."
According to the affidavit filed in support of
the petition by
the plaintiff's Pietermaritzburg attorney the trial
Judge,
Mr Broster and Mr De Villiers (who had appeared as junior counsel
for the plaintiff at the trial) met in Durban and on the strength
of the
trial Judge's notes "they managed to reconstruct the said
missing evidence in
telegram form." Mr De Villiers then spent
some weeks in casting the reconstruction "into a more detailed
and understandable record." On 18 June 1986 GLDL wrote a
letter to MBLW in the following terms:-
"It is apparent that your client has no serious intention of pursuing the appeal
as the record has not been filed and no application
for condo-nation has been
submitted. We accordingly call upon your client to effect payment of the costs
which have already been
taxed within fourteen (14) days from date hereof failing
which applica-tion will be made for leave to
execute.
We reiterate that our client is not
prepared to
grant
12
grant any extension for the filing of the record and that any application for
condonation will be opposed."
On 4 July 1986 GLDL
wrote a further letter to MBLW pointing
out that some three months had
expired since the discussions
between the trial Judge and counsel. The letter
proceeded
to say:-
"Advocate de Villiers communicated with writer last week and informed us that
the record is now ready and would be filed forthwith.
We reiterated to him that
we are not prepared to condone the late filing and that we have been instructed
to oppose any application
for condonation.
The record has not yet been filed and we are now applying to Court for leave to
execute."
On 19 August 1986 MBLW wrote to GLDL
enclosing a copy of the
record of the proceedings which included the reconstructed
portion, with a request that it be submitted to Mr Broster
for his approval. The record was approved by Mr Broster on
19 September 1986.
The
13
The plaintiff's petition for condonation was served on GLDL on 14 October
1986. In opposition thereto the defen-dant filed an answering
affidavit to which
the deponent was Mr R Liebetrau, a partner in GLDL.
In resisting the
application for condonation Mr
Broster
, who appeared for the defendant
(respondent), was content to base his opposition thereto on the following
grounds: (1) that, affecting
the merits of the appeal, the plaintiff had no
rea-sonable prospects of success; and (2) that in a case in which the lodging of
the
record was already hopelessly out of time there supervened after 19
September 1986 (on which date the reconstructed record had been
approved by the
defendant) and 21 November 1986 (on which date the record was ultimately lodged)
a lengthy and wholly unexplained
delay.
The issue of the plaintiff's prospects of success will be touched upon later.
In regard to the delays in the
case
14
case there is much force in Mr
Broster's
second contention. It is a
serious criticism of the plaintiff and his Pieter= maritzburg attorneys that
after the defendant had approved
the reconstructed record there was a further
delay of more than two months before the record was lodged; and that no
explanation
whatever for this further and lengthy delay is proffered. But there
is, I consider, a further example of unexplained dilatoriness
on the part of the
plaintiff and MBLW which represents an even greater stumbling block in the way
of condonation. Whenever an appellant
realises that he has not complied with a
Rule of Court he should apply for condonation without delay. See:
Croeser
Standard Bank
1934 AD 77
at 79;
Reeders v Jacobsz
1942 AD 395
at 397;
CIR v Burger
1956(4) SA 446(A) at 449G/H;
Meintjies v H D Combrinck
(Edms) Bpk
1961(1) SA 262(A) at 264B. In the present case the defendant's
attorneys agreed in December
1984.,
15
1984 to allow the plaintiff's attorneys "a reasonable exten= sion of time" in
which to obtain the record. An examination . of the
correspondence shows, I
think, that the defendant's attorneys exercised considerable patience. They were
prepared to wait for more
than a year before informing the plaintiff's attorneys
(in November 1985) that they considered that the plaintiff had had more than
a
reasonable time to reconstruct the record; that the plaintiff should make a
substantive application for condonation; and that such
application would be
opposed. The fact that the defendant would oppose any application for
condonation was stressed in subsequent
letters (on 18 June 1986 and 4 July 1986)
by GLDL to MBLW. The plaintiff nevertheless waited for more than a year before
presenting
his petition for condonation; and for this inordinate delay no
explanation is offered.
Nor do the petitioner's problems end here. Mention
has
16
has already been made of the fact that the record eventually
lodged in November 1986 was incomplete. It is necessary here
to indicate the extent of the deficiency and its unfortunate
practical consequences. At the trial various photographic
exhibits were handed in. The record was lodged under cover
of a letter dated 21 November 1986 written by BMLW's Bloem=
fontein correspondents to the Registrar of this Court. I
preface what follows by pointing out that no blame attaches
to the Bloemfontein attorneys who were acting on instructions
of their Pietermaritzburg correspondents. In par 1.3 of the
letter to the Registrar the Bloemfontein attorneys stated
that, whereas six copies of the record were being lodged, but
a single copy of each of exhs "B", "C", "D", "E" and "F"
accompanied the record, the reason for this step being:-
" ons verstaan van ons opdraggewende
korrespondente dat hulle met Mev Botha gereël het dat,
vanweë
die grootte van hierdie betrokke
bewysstukke,....
17
bewysstukke,
slegs een eksemplaar van elk
ingedien mag word
vir gebruik deur
al die Regters."
(My underlining.)
The record
also comprised, as exh "H", seven colour photographs
taken from various
vantage points visited during the inspection
in loco
. Concerning exh
"H" par 1.4 of the letter to the
Registrar said:-
"In elke afskrif van die Oorkonde is fotostatiese afdrukke van hierdie bewysstuk
wel ingesluit, maar die fotostatiese afdrukke is
beswaarlik leesbaar en die
oorspronklike word dus afsonderlik ingehan-dig; die betrokke fotos kan
ongelukkig nie gedupliseer word
nie."
Certain comments are necessary. As far as exh "H"
is
concerned the plaintiff's legal representatives in fact
managed to produce,
very shortiy before the date of the hearing
of the appeal, three perfectly acceptable duplicates or copies
of the seven photographs. Of the remaining photographic
exhibits the most important is exh "E", which is a composite
aerial
18
aerial photograph of "Penavon" and the properties to the north of it, upon
which photograph the extent of the area devastated by the
fire is to be seen.
During the trial reference by witnesses to exh "E" was facilitated by
super-imposing a grid upon it. In fact
the single exhibit originally lodged in
this Court as exh "E" was not the original exhibit but a smaller version of it
without a
grid. None of the five exhibits mentioned in para 1.3 of the letter to
the Registrar was in fact in any way larger or bulkier than
the average
photographic exhibits which, in the proper fashion, are regularly lodged in
sufficient number with the appeal record
in many of the innumerable appeals
heard by this Court; and there was no valid or sufficient reason for not lodging
the required
number of exhibits in the instant case. The failure to do so
seriously hampered the members of this Court in their reading and understanding
of the evidence at the trial. I
should
19
should mention that for a reason which was not explained the original of exh
"E" was unearthed only very shortly before the hearing
of the appeal. It was
found in the possession of the -defendant's attorneys and was brought to
Bloemfontein by counsel on the very
eve of the appeal. The preparation of an
appeal record requires closer attention than was given to it in this case.
By way of summary, the woeful picture which so far emerges is the following:
(1) The record of the proceedings, in incomplete form,
was lodged with the
Registrar of this Court more than two years after the trial had ended. (2)
Pho-tographic exhibits handed in during
the trial constitute an integral part of
the record of proceedings on appeal. In the present case the photographic
exhibits were
quite essential for a proper understanding of the evidence. These
fundamental considerations notwithstanding the record lodged was
signifi-
cantly
20
cantly incomplete in the respects mentioned. (3) The plaintiff's
Pietermaritzburg attorneys appreciated as early as October 1985 (a)
that an
application for condonation of the late lodging of the record had become an
essential pro-ceeding in the prosecution of the
appeal and (b) that such an
application would be resisted by the defendant; but BMLW nevertheless waited for
more than a year before
presen-ting the application for condonation. No
explanation whatsoever for this extraordinary procrastinaticn is offered. (4)
Even
if full allowance be made for the difficulties presen-ted by reconstruction
of portion of the record, the steps ini-tially taken
to this end were
characterised by more than a little torpor and tardiness. (5) The record as
reconstructed was ready for lodging
on 19 September 1986. In fact it was only
lodged on 21 November 1986; and there is no explanation for such further and
lengthy delay.
I
21
I turn to the matter of the petitioner's
prospects
of success in the appeal. Here again the
petition is defec-
tive. Where application is made for condonation of
an
appellant's failure to lodge the record timeously it is advi-
sable (more particularly where, as in the present case, the
explanation is
palpably wanting) that the petition should
set forth briefly and succinctly such essential information
as may enabie
the Court to assess the appellant's prospects
of success. See
Meintiies v
H D Combrink (Edms)
Bpk (
supra)
at 265C. The sole averment made in this respect (which is
to be found in the supporting affidavit by the plaintiff's
Pietermaritzburg attorney) is:-
"....that the Appellant has a reasonable prospect of success for reasons set out
in the Appellant's Notice of Appeal."
The notice of
appeal, however, states no reasons for conclu-
ding that the appeal is likely to succeed. It does no more
than
22 than to recile that the trial Court erred in making the
findings on which its judgment is based; and to list those findings which,
so it
is suggested, the learned Judge should have made.
In applicationsof this sort the prospects of success are in general an
important, although not decisive, consideration. It has been
pointed out
(
Finbro Furnishers (Pty) Ltd v Registrar of Deeds Bloemfontein and Others
1
985(4) SA 773(A) at 789(C)) that the Court is bound to make an assessment
of the petitioner's pro-spects of success as one of the
factors relevant to the
exercise of the Court's discretion unless the cumulative effect of the other
relevant factors in the case
is such as to render the applica-tion for
condonation obviously unworthy of consideration. It seems to me that in the
instant case
the cumulative effect of the factors which I have summarised in
paragraphs (1) to (5) above is by itself sufficient to render the
application
unworthy of consideration; and that this is a case in which the Court
should
23
should refuse the application irrespective of the prospects of success. (Cf
Mbutuma v Xhosa Development Corporation Ltd
1978(1) 681(A) at 687A;
P
E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty)
Ltd
1980(4) SA 794(A) at 799D/E). For the sake of completeness, however, I
mention the following. In this instance the Court adopted
the usual procedure of
permitting counsel on both sides to canvass the merits at length as part of the
application for condonation.
The judgment of the Court below is a careful and
reasoned one. Having considered everything said on behaif of the appellant by Mr
Gordon
in the course of his full and fair argument, I have formed the
impression that the case for the plaintiff is a flimsy one and that
the
prospects of success on appeal are slender in the extreme.
For the reasons aforegoing I conclude that the petitioner has not shown
sufficient cause for the condonation
of
24
of the plaintiff's non-compliance with the Rule governing the lodging of the
record of the trial proceedings; and that the application
must fail. Counsel for
the defendant (respondent) had to come to Court prepared to argue not only the
application for condonation
but the appeal as well. The costs to be borne by the
appellant will therefore include the respondent's costs of the appeal.
In the result the petition for condonation is dis-missed with costs.
G G HOEXTER, JA GROSSKOPF,JA )
STEYN,JA ) Concur