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1990
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[1990] ZASCA 89
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President Insurance Company Ltd. v Jonker (322/89) [1990] ZASCA 89 (13 September 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
PRESIDENT INSURANCE COMPANY LIMITED
Applicant
and
ANNA
CATHARINA JONKER
Respondent
Coram
: E M GROSSKOPF, NESTADT, STEYN
J J A
Heard
: 30 August 1990
Delivered
: 13 September 1990
JUDGMENT
2
E M GROSSROPF:
J A
This is an application for condonation of the late lodging of the applicant's
power of attorney to note and prosecute an appeal; of
the late lodging of
security for the respondent's costs of appeal; and of the late lodging of the
record of the proceedings. The
facts are briefly as follows.
The respondent
cláimed damages from the applicant - in the Witwatersrand Local Division
in her personal capacity as well as
in her capacity as mother and natural
guardian of her minor children, for losses arising from the death of her husband
in a motor
car accident. In a judgment of 3 Marchl989, amplified on 21 April
1989, the court (SCHABORT J) found in her favour. He awarded a
sum of R356
763,00. Included in this sum was an amount of R9 833,00 to compensate the
respondent for the loss of purchasing power
of the money
3
making up her award for loss of support between the date of the deceased's
death and the trial. This amount was awarded on the strength
of
Everson v
Allianz Insurance Ltd
1989(2) SA 173 (C), and I shall refer to the principle
laid down in that case as the
Everson
principle.
The applicant
considered that the
Everson
principle was unsound and it intended testing
its correctness on appeal. The Court
a quo
granted leave to appeal on 16
May 1989.
Because of the relatively small amount involved, the respondent
contemplated abandoning the decision on the
Everson
principle in her
favour so as to avoid a possible costs order on appeal against her. However, the
applicant wanted to keep the appeal
alive in order to obtain an authoritative
decision on the
Everson
principle. It therefore advised the respondent
that it was prepared to pay the respondent's costs should the matter go on
appeal
and should the applicant be
4
successful.
On 9 June 1989 the applicant's attorneys filed and served a notice of appeal.
In terms of the A D Rules of Court a power pf attorney
authorizing the attorneys
to prosecute the appeal should then have been filed within 21 days (Rule 5(3)
bis (a)): the record should
have been lodged within three months of the date of
the order granting leave to appeal (Rule 5(4)(b)) and the applicant should have
lodged security for the respondent's costs of appeal before lodging the record
(Rule 6(2)).
In the meantime the applicant had been involved in another
matter in the Witwatersrand Local Division (before PREISS J) in which the
plaintiff relied on the
Everson
principle, viz.
Moekoena v President
Insurance Co Ltd
(Case No 16170/87). On 13 June 1989 PREISS J delivered
judgment, declining to follow
Everson
's case. The applicant then
5
learnt that the validity of the
Everson
principle was to
be tested on appeal to this Court from a judgment in the Cape Provincial
Division,
Hartley v S A Eagle Insurance Co Ltd
1989(2) S A 927 (C).
Applicant also believed that the
Everson
case itself was to go on
appeal.
In view of the dissent by PREISS J, and the fact that the
Everson
principle was to be tested on appeal in one or more other cases,
the applicant's attorneys advised the respondent's attorneys that
the necessity
for an appeal had fallen away and suggested that the parties await the judgment
of this Court in the
Hartley
matter. It was further suggested that the
sum of R9 833, 00 be placed in an interest bearing account pending the decision
on appeal
of the
Hartley
matter (the rest of the respondent's award had
already been paid). The respondent's attitude was uncompromising : on 7 July
1989
her attorneys wrote
inter alia
as follows:
6
2. "We confirm your advises (sic) that your client no
longer wishes to proceed with the appeal.
3. We have discussed the matter with our client's senior counsel.
4. We are instructed that should your client no longer wish to proceed with the
appeal, our client requires that she be paid the
amount of R9 833,00 being the
value of the portion of the judgment appealed against by your
client."
There was no i'mmediate reaction to this
letter despite reminders
on 17 July, 20 July, 26 July, and 31 July.
On 4 August 1989 the attorneys of the parties
met.
What happened at the meeting, and what the
respondent's attitude
was, appears from the follpwing extract from a letter
written
by respondent's attorney on 11 August 1989.
"We confirm that your Mr van Oudtshoorn informed the writer that your client no
longer wished to proceed with the appeal but that
notwithstanding this it would
not pay to our client the portion of the judgment which was subject to the
appeal. Your client apparently
further intends
withdrawing
7
its offer to indemnify our client in respect of any adverse costs order in the
appeal as well as its undertaking to pay our client's
costs in the appeal.
We have obtained our client's instructions in regard to the aforesaid and advise
that should your client no longer intend proceeding
with the appeal our client
requires your client to make payment to our client of the portion of the
judgment which was subject to
the appeal."
Further
correspondence followed which I need not set out. The applicant repeated its
proposal that the parties, in effect, accept
the decision to be given on appeal
in the
Hartley
matter, whereas the respondent persisted with her attitude
that the applicant should either appeal or pay. Finally, on 25 October
1989, the
applicant filed its petition for condonation.
The principles on which
condonation is granted are well known and need not be repeated. The
applicant's
8
initial purpose was to test the
Everson
principle. This
was clearly a matter of importance to the applicant, and it was common cause
that its prospects on success are reasonable,
if not good. However, when the
applicant decided rather. to await the decision in the
Hartley
case, the
present case ceased being one of principle, and the applicant's only concern was
to avoid paying the sum of R9 833,00.
In fact the
Hartley
appeal was
argued a few days before the hearing of the present application, and judgment
will no doubt be given fairly soon.
While the prospects of appeal in the
present matter are accordingly good, the amount in issue is relatively small and
the importance
of the matter does not extend beyond the amount in issue.
I
turn now to the reason for the delay. The applicant was eager to persuade the
respondent to accept the decision in the
Hartley
matter. However, from
the beginning
9
the respondent firmly refused to do so. This left the applicant with no
alternative but to appeal if it was not prepared to pay the
amount in issue.
This, for some reason which it did not disclose, the applicant seemed unwilling
to do. Perhaps it was considering
paying the amount rather than incur the costs
of appeal, perhaps its attorneys were merely dilatory. We do not know. But be
that
as it may, time was elapsing : the power of attorney should have been filed
in the first weeks of July, the record should have been
lodged by the middle of
August, and security should have been lodged before then. Only on 16 October
1989 did the applicant's attorney
enquire whether the respondent required
security for her costs. Before then no active step was taken in the prosecution
of the appeal.
And, as I have stated, the petition for condonation was filed
only on 25 October 1989.
10
The position then is that the prospects of success on appeal
are substantial but that the amount in issue is relatively small, the
matter is
not one of particular importance for the parties and the applicant has been
guilty of a long and unexplained delay in prosecuting
its appeal. Weighing up
these various factors I do not consider that condonation should be
granted.
As far as costs are concerned: the respondent successfully opposed
the application and I can see no reason why she should not be awarded
her
costs.
The application is dismissed with costs.
E M GROSSKOPF, JA NESTADT, JA
STEYN, JA Concur