IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : A85/2023
In the matter between:
LANEL BREDA N.O. 1st Appellant
HERMANUS PETRUS STEYN N.O. 2nd Appellant
RICHARDT SCHEFFER N.O. 3rd Appellant
AND
ETTIENE JACQUES NAUDE Respondent
In Re:
ETIENNE JACQUES NAUDE Applicant
AND
LANEL BREDA N.O. 1st Respondent
HERMANUS PETRUS STEYN N.O. 2nd Respondent
RICHARDT SCHEFFER N.O. 3rd Respondent
In Re:
LANEL BREDA N.O. 1st Plaintiff
HERMANUS PETRUS STEYN N.O. 2nd Plaintiff
RICHARDT SCHEFFER N.O. 3rd Plaintiff
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
14 February 2025
Date K. La M Manamela
2
AND
TRIFECTA INVESTMENT HOLDINGS (PTY) LTD 1st Defendant
ALEFEUS CHRISTO SCHOLTZ N.O. 2nd Defendant
ELMARIE SCHOLTZ N.O. 3rd Defendant
JOHANNES VOS N.O. 4th Defendant
ALEFEUS CHRISTO SCHOLTZ 5th Defendant
ETIENNE JACQUES NAUDE 6th Defendant
VOS, STEYN, VAN ZYL INCORPORATED 7th Defendant
ANNEKE PRETORIUS 8th Defendant
THE REGISTRAR OF DEEDS 9th Defendant
DATE OF JUDGMENT : This judgment is issued by the Judges whose names are reflected
herein and is submitted electronically to the parties/their legal representatives by email. The
judgment is further uploaded to the electronic file of this matter on Caselines by the Judge’s
secretary . The date of the judgment is deemed to be 1 4 February 2025.
JUDGMENT
Khashane Manamela, AJ (Hassim, J and Mahosi, J concurring)
Introduction
[1] The writing of this judgment was recently assigned to me by this Full Court due to the
initial designated scribe , Hassim J, becoming unable to do so due to circumstances beyond her
control. The Court expresses its regret for the delay.
[2] The first to third appellants (‘the appellants’) are the trustees , for the time being , of the
Shosholoza Trust. They are dissatisfied with the dismissal of their action against the respondent
by Kooverjie J (‘the Court a quo ’). The action was instituted in August 2011 by the appellants
seeking , in the main , payment of an amount of around R3 million from the respondent . The
respondent, a practising attorney of this Court, had been retained by the appellants to render
services in the aforesaid or some other capacity in terms of an agreement between the parties.
The respondent, in turn, had in September 2020 brought an application for the action
proceedings to be dismissed due to the appellants’ alleged failure to prosecute their claim (i.e.
3
the action proceedings) timeously . As stated above, the Court a quo found in favour of the
respondent and in terms of its judgment handed down on 8 November 2022 dismissed the
action by the appellants . The Court a quo , subsequently, granted the appellants leave to appeal
that outcome to this Full Court .
[3] The appeal came before th is Full Court on 14 August 2024. Mr NG Louw appeared for
the appellants and Mr HF Oosthuizen SC appeared for the respondent . But, t he hearing of the
appeal was impeded by another application brought by the respondent , a month before the
hearing, for the striking of the appeal from the roll on the basis of alleged non -compliance with
the Uniform Rules of the Court. The striking application was also timed by the respondent to
be heard on the same date as the appeal . Obviously , due to the nature of the relief sought, it
had to precede the hearing of the appeal in sequence . In the end , there was insufficient time to
hear the appeal and judgment in the striking application was reserved.
[4] As apparent from what appears above, the parties in this matter have been involved in
a handful of legal skirmishes , already. The striking application is the latest of the legal battles
between the parties. A brief background , therefore, is warranted to cast the issues relevant to
the striking application in a proper context.
Brief background
[5] What appears below is common cause between the parties or not dispositively disputed ,
otherwise the areas of dispute are pointed out . As this judgment concerns what is actually an
interlocutory application, the material in the background is also derived from the papers in the
bundles for appeal .
[6] The appellants’ claim against the respondent revolves around an entity called Trifecta
Investment Holdings (Pty) Ltd (‘Trifecta ’), cited as the ninth respondent in the action
proceedings, as reflected above. Trifecta , at all material times , had two directors , namely, Mr
4
Sarel Johannes Breda ( ‘Breda’ ) and Mr Alfeus Christo Scholtz ( ‘Scholtz’ ). Breda held his 55%
shares in Trifecta through the Shosholoza Trust , a family trust . Breda died in a plane accident
on 3 March 2009 . He is survived by his wife, Ms Lanel Breda (‘Mrs Breda’). Mrs Breda is one
of the trustees of the Shosholoza Trust and participates herein in that capacity as the f irst
appellant . The other trustees are Mr Hermanus Steyn and Mr Richardt Scheffer, cited as second
and third appellants, respectively.
[7] It is said that d uring June 2009, the respondent was mandated by the Shosholoza Trust
to give advice, among others, regarding a proposed sale of Shosholoza Trust ’s shareholding in
Trifecta. There appears to be some dissatisfaction about the services or advice provided by the
respondent including an amount of R3,2 million which the appellants say the respondent
withheld from his trust account as a fee. The appellants consider the respondent ’s conduct an
unlawful and intentional misappropriation of trust funds , which ought to be repaid by the
respondent to the Shosholoza Trust . These allegations are disputed by the respondent.
[8] The appellants issued summons against the respondent on 16 August 2011 . It appears
that the action proceedings stalled after delivery of an e xception by the respondent (together
with his co -defendants in the action) complaining that the particulars of claim are vague and
embarrassing. The exception was , at some stage set down by the appellants, for hearing on 7
September 2020 . It is not clear what became of this . Of particular relevance , for current
purposes , is that, on 1 September 2020 , the respondent launched the application to dismiss the
action proceedings on the basis that the appellants had failed to prosecute their claim timeously
(‘the Dismissal Application’) . On 8 November 2022 , the Court a quo handed down its
judgment in the Dismissal Application , effectively, dismissing the action proceedings with
costs.
5
[9] The same Court granted the appellants leave to appeal to this Full Court on 9 February
2023. A month later, on 9 March 2023 the appellants served their Notice of Appeal. The appeal
bundles were served on 23 May 2023. The notice or application for a date of hearing of the
appeal and the bond of security were also serv ed on the same date. The appellants, also, appear
to have filed their heads of argument and the practice note on 31 May 2023. The appeal was
initially set down for hearing on 28 August 2024 with the notice to this effect served on the
respondent on 23 Jun e 2023. The date was brought forward to 14 August 2024 in terms of a
directive by the Judge President of the Division dated 22 May 2024. The respondent’s
application to strike the appeal from the roll was served on 15 July 2024, less than a month
from the date of hearing of the appeal on 14 August 2024.
Notice of Appeal
[10] Following the granting of the leave to appeal , the appellants delivered their notice of
appeal in March 2023 .
[11] The notice of appeal stated that the appeal was directed at ‘the whole of the judgment
delivered by the Honourable Kooverjie J (“the Court a quo ”) on 8 November 2022 ’. The notice
of appeal also stated that the intended appeal was based on a number of specified grounds on
the basis of which it was aver red that the Court a quo erred in dismissing the appellants’ action
with costs . The nature and extent of the contents of the notice of appeal form part of the
multifrontal attack by the respondent that the appeal be struck from the roll. The latter
application is discu ssed next .
Respondent’s striking application and the appellants’ counterapplication
General
[12] On or around 15 July 2024 , the respondent launch ed an application to strike the appeal
from the roll on a number of grounds (‘the Striking Application’) . The purpose of the Striking
6
Application was said to be the failure on the part of the appellants to comply with the Rules of
this Court.
[13] The app ellants dispute that the there is anything untoward with the appeal or its
trappings , including the notice of appeal . In the ir answer to the Striking Application, the
appellants included what is characterised as a c ounter -application. Es sentially, the so -called
count er-application is aimed at addressing some of the complaints in the Striking Application
and, also, they seek condonation regarding any non -compliance that may have been
highlighted by the former application. I must immediately mention here that there is a dispute
as to the aspects over which condonation is sought , as will appear below . The two applications,
as they are e ssentially fo cussed on the same issues, are dealt with next under self -explanatory
paragraphs.
Grounds for the Striking Application
[14] The grounds for the Striking Application can be stated as follows , that : (a) the notice
of appeal does not state the particular respect in which the variation of the judgment or order
of the Court a quo is sought , as required by Rule 49 (4)(b)1 of the Uniform Rules of this Court
and, thus, the notice of appeal is a nullity which cannot be cured by an amendment ; (b) no
power of attorney was filed with the registrar authorising the appellants’ attorneys of record to
launch the appeal , as required by Rule 7 (2);2 (c) failure to comply with Rule 49 (13)3 in respect
of the f urnishing of security for costs of appeal .
Requirements of Uniform Rule 49(4)(b) and effect of non -compliance therewith
[15] Rule 49(4) specifies the requirements for a notice of appeal as follows :
‘Every notice of appeal and cross -appeal shall state —
(a) what part of the judgment or order is appealed against; and
1 Par [15] below , for a reading of Rule 49(4).
2 Rule 7(2) .
3 Rule 49(13) .
7
(b) the particular respect in which the variation of the judgment or order is
sought .’
[underlining added]
[16] The respondent complains that the notice of appeal failed to state ‘the particular respect
in which the variation of the judgment or order of [the Court a quo ] is sought.4 The appellants ,
on the other hand, say that the re is nothing wrong as their appeal is directed at the whole
judgment of the Court a quo . They seek the overturn ing of the judgment of the Court a quo
and, thus, see no room for any other interpretation of their notice of appeal .5 The respondent ’s
retort is that the approach urged upon by the appellants accord with Rule 49(4) prior to its
amendment in 20136 and not in its current form . But, the appellants’ case in this regard is also
to the effect that the respondent and his legal representatives , who have been with him
throughout these legal proceedings, have always known that the appellants are dissatisfied with
the whole judgment of the Court a quo . This was made patently clear to the respondent ’s
attorneys and coun sel. Also, th is is manifested by the respondent ’s ability to file his heads of
argument in opposition to the appeal , the contention concludes. Although, nothing would turn
on the latter part of the argument on behalf of the appellants, it is unavoidable to state that its
logic do not seem to accord with the tenets of our law. Litigation cannot be based on some
extra -curial or informal activities by the parties or on their behalf not borne by the papers before
the Court .
4 Par [15] above , for a reading of Rule 49(4)(b).
5 The appellants deny that the notice of appeal suffers from non -compliance with Rule 49 and, among others,
reject the contention by the respondent that the lack of particularisation of the material in the judgment or
the order of the Court sought to be vari ed by pointing to paragraph 1 of the notice of appeal which reads
as follows: ‘The Court a quo erred in dismissing the Appellants’ action with costs…’
6 Rule 49(4) prior to its amendment read as follows: ‘The notice of appeal shall state whether the whole or
part only of the judgement or order is appealed against and if only part of such judgement or order is
appealed against, it shall state which part and shall further specify the finding of fact and/or ruling of law
appealed against and the grounds upon which the appeal is founded.’ See GN R472 of 12 July 2013.
8
[17] Counsel for the respondent steadfastly relied on the decision in Tzouras v SA Wimpy
(Pty) Ltd7 to argue that the appellants’ notice of appeal is defective due to failure to comply
with the requirements of Rule 49(4) . The notice of appeal , counsel argued, failed to specify the
findings of fact or rulings of law appealed against and the grounds upon which the appeal was
founded.
[18] The decision in Tzouras , per Margo J , concerned a n otice of appeal (involving an order
for the ejectment of the applicant therein from certain premises ) and its alleged f ailure to
comply with Rule 49 (4)8 in an appeal to the Full Bench . The notice of appeal in Tzouras simply
stated that the appeal was ‘ noted against the whole of the judgment handed down ’ by the court
a quo .9 The Court held
‘The particular requirements of Uniform Rule of Court 49 (4) and of the
corresponding Rule in the magistrates' court have generally been regarded as
peremptory so that failure to comply with them (or at least to comply with them
substantially) invalidates t he notice of appeal ab initio . Such a notice of appeal is void
and therefore cannot be cured by amendment … In Alex Murray (Pty) Ltd v
Perry 1961 (2) SA 154 (N) the same Rule was applied but the Court permitted the
would -be appellant to file a fresh notice of appeal which complied with the relevant
Rule, and at the same time granted condonation of the late filing of a valid notice of
appeal. A similar approach ha s been adopted in respect of other requirements of Rule
of Court 49 and of the corresponding Rule in the magistrate's court, but it is not
necessary to refer to these cases. ’10
[19] Ultimately, despite its latter dicta alluding to the possibility of a fresh compliant notice
of appeal availing condonation, the Court in Tzouras held that Rule 49(4) was peremptory and ,
thus, failure to comply with its provisions invalidates the notice of appeal ab initio and renders
it a nullity .11
7 Tzouras v SA Wimpy (Pty) Ltd 1978 (3) SA 204 (W) 205D -E
8 Rule 49(b) read differently from the current rule, as follows: ‘Every notice of appeal to the full court shall
state whether the whole or part only of the order is appealed against and if part only is appealed against it
shall state which part; and it shall specify the findings of fact or rulings of law appea led against and the
grounds upon which the appeal is founded.’ See Tzouras v SA Wimpy 1978 (3) SA 204 (W) 205B.
9 Tzouras v SA Wimpy 1978 (3) SA 204 (W) 205C.
10 Tzouras v SA Wimpy 1978 (3) SA 204 (W) 205E -G.
11 Tzouras v SA Wimpy 1978 (3) SA 204 (W) 205H -206D.
9
[20] Mr Oosthuizen SC for the respondent submit s that t he principles articulated in Tzouras
remain good law and enjoyed higher affirmation in terms of the decision of the Supreme Court
of Appeal in Leeuw v First National Bank Ltd .12 But the SCA went further in the latter decision
to also observe that:
‘In 1987 the Uniform Rules of the High Court were amended to provide, for the first
time, for the delivery, prior to the hearing, of 'a concise and succinct statement of the
main points . . . which [a party] intends to argue on appeal' - so-called heads of
argument. It can be said that since th en the object of the notice of appeal to inform
the respondent and the court was also achieved by the heads of argument …’13
[21] It is notable that the SCA in Leeuw cited the change in the formulation of the Rule as a
basis for its subsequent holding regarding the delivery of heads of argument.14 The latter
holding was recently applied in the Full Bench ( coram: Manoim J and Gilbert AJ) decision of
this Division in Johannesburg in Miya v Matleko -Seifert15 in the following observations:
‘Accordingly the object of the notice of appeal, to inform the respondent of the case
the respondent must meet on appeal and the appeal court of the points to be raised on
appeal, is now also achieved by the heads of argument. In the present instance, the
appellant does expressly raise the challenge to the magistrates' court's jurisdiction in
her heads of argument on appeal. ’ [footnote omitted]
[22] The essence of the holding above was shared earlier by the Full Court (constituted by
Bozalek, Cloete and Savage, JJ) of the Western Cape Division (Cape Town) in Wiese and
another v ABSA Bank Ltd ,16 including as follows:
‘[6] The bank contended that the notice of appeal is fatally defective in that it failed
to specify the finding of fact and/or ruling of law appealed against and the grounds
upon which the appeal is founded. On the other hand the appellants submitted that,
given the change in the wording of the sub rule pertaining to notices of appeal, this is
no longer a requirement.
12 Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA) [2].
13 Leeuw v First National Bank 2010 (3) SA 410 (SCA) [2].
14 Para [20] above.
15 Miya v Matleko -Seifert 2023 (1) SA 208 (GJ) [51].
16 Wiese and another v ABSA Bank Ltd (14580/2013) [2017] ZAWCHC 12; [2017] 2 All SA 322 (WCC) (24
February 2017) [3] -[18].
10
[7] In Leeuw v First National Bank Limited 2010 (3) SA 410 (SCA) at paragraph
2 it was stated that [also reported at [2010] 2 All SA 329 (SCA) – Ed] …
…
[15] In the present matter the appellants not only complied with Practice Note 46(5)
but also filed comprehensive heads of argument dealing with the issues in the appeal.
Counsel for the bank accepted that the latter was neither prejudiced in preparing for
the appeal, nor taken by s urprise as to what case it was called upon to meet. In
addition, it was clear to us from both the Practice Note and heads of argument filed
by the appellants what the issues were.
…
[18] To sum up therefore, it would appear that, to the extent that the older cases
took the approach that the previous Uniform Rule 49(3) was peremptory in nature (at
least in the context of appeals from the magistrates’ courts), the decision
in Leeuw (supra ) has made it clear that this is no longer the position in the Supreme
Court of Appeal. Moreover, to the extent that there was a dichotomy between
Supreme Court of Appeal Rule 7 and the old Uniform Rule 49(3), this is no longer
the case. Further, and at least in this Division, Practice Note 46(5) caters for any
apparent def iciency in a notice of appeal which might give cause for complaint. It
follows that the point in limine must fail .’ [underlining added]
[23] This is also the view of the Limpopo Division (Polokwane) in Limpopo Province
Voluntary Group Scheme Board and Others v Mahubane and Others .17
[24] Most of these decisions did not feature, at all, or gain any prominence in argument
during the hearing of the Striking Application. And, I am not casting aspersions. Counsel for
the respondent was emphatic in his reliance on Tzouras for his submission that i t renders Rule
49(4) peremptory and relegate to nullity any failure to comply with its provisions . But , the SCA
in Leeuw (as adopted by this Division and others) made it clear that since the object of the
notice of appeal is to inform the respondent and the Court, this is also achieved by the heads of
argument .18 In my view this is part of the current law on the issue.
[25] In conformance with Leeuw , the current practice directive19 of this Division and
previous ones, including the practice manual20 require (d) the delivery of heads of argument for
17 Limpopo Limpopo Province Voluntary Group Scheme Board and Others v Mahubane and Others
(HCAA14/2019) [2021] ZALMPPHC 2 (28 January 2021) [28] -[35].
18 Leeuw v First National Bank 2010 (3) SA 410 (SCA) [2]. See para [22] above.
19 Consolidated Practice Directive 1/2024 para 33.17.2.
20 Chapter 7 (Civil Appeals) which also draws the attention of the drafter of heads to the remarks of Harms
JA in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and another 1998 (3) SA 938 (SCA)
[37].
11
purposes of the prosecution of an appeal . The a ppellants filed what appears to be
comprehensive heads of argument succinctly setting out the impugned material in the judgment
of the Court a quo and the grounds therefor . Consequently, the respondent is in no lesser
position to know the findings of fact or rulings of law appealed against and the grounds upon
which the appeal is founded. The same applies to the Court. It is also not inconsequential that
the appellants have prior to the hearing of the appeal , albeit ‘out of abundance of caution ’,
amended the notice of appeal. But the respondent appears to dispute that the amendment is of
no consequence, since it is not covered by condonation sought in the appellants’
counterapplication. I do not really think it is necessary to deal with this aspect for current
purposes.
[26] The respondent, despite the appellants’ efforts to address his concerns, finds the notice
of appeal to remain an impediment towards the hearing of the appeal. It is also notable that the
respondent’s case does not reveal any form of tangible prejudice - actual or anticipated – due
to the alleged non -compliant notice of appeal. At least not prejudice incapable of being
remedied through the conventional means of a costs order , often accompanied by postponement
of the appeal . The respondent seeks only the striking of the appeal from the roll of this Court.
This approach elevates the form of the rules and practice of our Courts over the substance
thereof and risk impeding the realisation or exercise of constitutional rights of access to our
courts21 and of enforcement of such and similar right s.22 Such an approach is discouraged by
our Court s and it should be. If nee ds be, the Court should summon the supreme legal powers
afforded by section 173 of the Constitution ‘to protect and regulate [its] own process, and to
develop the common law, taking into account the interests of justice ’.
21 Section 34 of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’).
22 Section 38 of the Constitution.
12
[27] Consequently, I find no merit in the attack on the notice of appeal in the light of what
appears above . I turn to the other grounds for the Striking Application.
No Power of Attorney was filed
[28] Uniform Rule 7(2) prescribes the filing of a power of attorney for purposes of the setting
down of an appeal as follows:
‘The registrar shall not set down any appeal at the instance of an attorney unless such
attorney has filed with the registrar a power of attorney authorising him to appeal and
such power of attorney shall be filed together with the application for a date of
hearing. ’
[29] It is common cause that when the appellants applied for a date for the hearing of the
purported appeal around 31 May 2023 , they did so without filing a power of attorney with the
Registrar of this Court. The respondent calls for the striking of the appeal from the roll also in
respect of this omission.
[30] The appellants admit ted the omission of the power of attorney. They say th e error was
rectified , immediately , upon receipt of the Striking Application . They say this was a bona fide
oversight on the part of the appellants ’ attorneys of record . In fact, the paralegal (initially
described as a candidate attorney in the answering affidavit ) who deposed to the answering
affidavit in the Striking Application appears to accept responsibility regarding this omission .
He attribute s the omission to lack of experience on his part in dealing with appeals. He accepts
that his lack of knowledge is no excuse and say that he would learn from the mistake. But I do
not think that a paralegal or even a candidate attorney should have been saddled with the sole
responsibility of handling the appeal. I n fact, a candidate attorney should not be left to wander
alone and unsupervised on any Court process, especially when he or she has no prior exposure
of the activity or task at hand. The respondent actually disp utes the capacity of the candidate
attorney to depose to the affidavit . It is in fact, pointed out by the respondent, that the paralegal
13
or candidate attorney was not involved in the matter. Mr Manley , the attorney, and Mr
Krouka mp, the paralegal w ere the relevant people wh o were involved in the matter . It is argued
on behalf of the respondent, that the condonation sought by the appellants for non -compliance
with Rule 7(2) should be refused for this mismatch in the deponent to the affidavit alone.
[31] The appellants, as already hinted, seek condonation in this regard in their so -called
counterapplication. It is argued on their behalf that the purpose of Rule 7(2) has been met by
the subsequent compliance, albeit after the respondent has already launched the current
application for striking. The appellants contend that the grounds advanced for cond onation of
any non -compliance in this regard are good . There is no prejudice on the part of the respondent ,
but the striking of the appeal from the roll wo uld prejudice the appellants , due to the error
which could only be blamed on the attorneys and not the appellants.
[32] To sum up : the respondent ’s case - in this regard - is that the appellants should have
filed the power of attorney when they appli ed for a date of hearing of the appeal in terms of
Rule 49(6)(a) , otherwise there was no proper application for a date of the hearing of the appeal .
This, notwithstanding the fact that the R egistrar may have set down the appeal despite the
appellants’ aforesaid failure to comply with Rule 7(2), the argument continues. T herefore, the
appeal ought to be struck from the roll for want of a proper set down .23
[33] As indicated above, the appellants conceded that there was non -compliance with Rule
7(2). They offered an explanation and sought to remedy their non -compliance with ex post
facto delivery of the power of attorney dated 16 July 2024 . Of particular significance, the
appellants , in terms of their counter -application , sought condonation. This was before the
hearing of the matter and, immediately when they were alerted to the omission by the
23 Aymac CC and another v Widgerow 2009 (6) SA 433 (W) , coram: Boruchowitz J, Mbha J and Gautschi
AJ, at para [6]; Smith v Sci Essel Offshore Services Limited (A740/2014) [2024] ZAGPPHC 119 (15
February 2024), coram: Van der Schyff, Mahosi and Davis, JJ at paras [17] -[18].
14
respondent’s Striking Application. Our authorities recognise the granting of condonation for
failure to comply with Rule 7(2) for deserving cases.24 Bearing in mind the facts surrounding
this aspect, some stated above, I am of the view that condonation should be granted. There is
no apparent irremediable prejudice to the respondent . I also agree with the appellants ’ view
that the respondent does not seem to have been impeded , in its opposition of the appeal , by the
non-compliance and the subsequent remedial steps taken by the appellants in this regard .
‘Good and sufficient security ’ for costs of appeal
[34] Rule 49(13) provides as follows:
‘(a) Unless the respondent waives his or her right to security or the court in granting
leave to appeal or subsequently on application to it, has released the appellant wholly
or partially from that obligation, the appellant shall, before lodging copies of the
record on appeal with the registrar, enter into good and sufficient security for the
respondent’s costs of appeal.
(b) In the event of failure by the parties to agree on the amount of security, the
registrar shall fix the amount and the appellant shall enter into security in the amount
so fixed or such percentage thereof as the court has determined, as the case may be. ’
[35] The appellants , in a quest to comply with Rule 49(13)(a) , delivered (with service on the
respondent on 24 May 2023 and filing with this Court on 31 May 2023 ) a document labelled
‘Bond of Security’ dated 17 May 2023, which stated the following in the material part:
‘BE PLEASED THAT THE APPELLANTS are held liable and firmly
bound for the costs in the abovementioned appeal to the full bench of the
Honourable Court in the amount of R1 000.00 in the event that the Honourable
Court may award costs to the Respondent. ’25
[36] The respondent disputes that the appellants complied with the peremptory provisions
of Rule 49(13)(a) .26 The appellants , it is contended on behalf of the respondent, did not ‘enter
into good and sufficient security ’ for the respondent’s costs of appeal. Th is is so, as th e
24 Aymac v Widgerow 2009 (6) SA 433 (W) [7].
25 CaseLines 041 -2.
26 Collatz and another v Alexander Forbes Financial Services (Pty) Ltd and others (A5067/2020;
43327/2012) [2022] ZAGPJHC 93 (10 February 2022), coram : Senyatsi J, Mahomed AJ and Amm AJ, at
paras [16]-[18].
15
purported security bond is meaningless and provide s no security to the respondent. Also , the
appellants were not released by the Court a quo from th e obligation in this regard nor has the
respondent waved his right to security for the costs of appeal.27 Further, it is contended on
behalf of the respondent, that t he appellants failed to reach agreement with the respondent on
the amount of security and the manner in which security is furnished, either before or following
the delivery of the so -called ‘Bond of S ecurity ’. The appellants did not request the registrar to
fix the amount of security, as envisaged in R ule 49(13)(b).28 Accordingly , the appeal ought to
be struck from the roll also on this ground, the respondent urges the Court.
[37] The appellants reject the criticism levelled by the respondent against the ‘B ond of
Security ’ filed and that it does not comply with R ule 49 (13). Regarding an approach to the
registrar to determine the amount of the security, the appellants consider this a prerogative o f
any litigant who disputes the amount of security furnished. Therefore , the respondent waived
his right to dispute the amount of the security given his delayed objection solely intended to
derail the appeal, the submission on behalf of the appellants concludes. Mr Louw for the
appellants , even doubt ed that there was any need for cond onation with regard to the issue of
security for costs .
[38] But, the provisions of Rule 49(13) are clear . The rule has two requirements which may,
if needs be, interdependent and sequential.
[38.1] The first requirement is that an ‘appellant shall … enter into good and sufficient
security for the respondent’s costs of appeal ’.29 The provision prescribes the timing for
the first requirement (i.e. ‘ before lodging copies of the record on appeal with the
registrar ’).30 Also, it allows the respondent in the appeal (through waive r of the right to
27 Rule 49(13)(a).
28 Para [34] above.
29 Rule 49(13)(a), quoted in para [34] above.
30 Ibid.
16
security ) or the Court (granting partial or whol e release from the obligation ) to dispense
the appellant from th e requirement.31 The latter allowances do not feature in the
(apparently) heavily contested appeal in this matter . The nature and extent of the
security is not mentioned in the rule, save for the appellation ‘ good and sufficient ’
security . The rule appears to grant an appellant the prerogative of determining the form
and amount of security. But, whilst the prerogative is not unconstrained, in terms of the
rule it appears only the respondent could enforce the granting of ‘good and sufficient’
security by triggering the second requirement of Rule 49(13).
[38.2] The second requirement of Rule 49(13) is overseen by the registrar. The
registrar’s involvement would be triggered or sought when there is ‘ failure by the
parties to agree on the amount of security ’.32 The rule does not prescribe who, between
the appellant and the respondent, is to approach the registrar and, thus, it is reasonable
to think that either of the parties or both of them may approach the registrar for
intervention . But , the registrar is clearly empowered to ‘ fix the amount ’ which the
appellant ‘shall enter into security in the amount ’ or percentage of amount determined
by the court .33 The learned author of Erasmus: Superior Court Practice34 explains that
the latter reference to ‘the court’ is to ‘the court that granted leave to appeal as
contemplated in paragraph (a) of this subrule’.35 I do not think that the registrar would
be reasonably discharging her or his duties if he or she goes about all these without
consideration of the views or representations of the contending parties. Therefore,
31 Rule 49(13)(a), quoted in para [34] above.
32 Rule 49(13)(b), quoted in para [34] above.
33 Jeanru Konstruksie (Pty) Ltd v Botes [2023] ZAGPPHC 2169; A304/2021 (30 May 2023) [27].
34 DE van Loggerenberg, Erasmus: Superior Court Practice (Revision Service 24, 2024 , Jutastat e -
publications October 2024).
35 Erasmus: Superior Court Practice RS 23, 2024, D1 Rule 49 -28.
17
assertions that a security bond filed is ‘meaningless and provides no security’ should
be advanced before the registrar .
[39] It is clear from the above, that the respondent should have sought the intervention of
the registrar for the latter to ‘fix the amount’ for the security or even the form thereof. It does
not behove a respondent to wait until the date of the hearing of the appeal to argue about the
nature and extent of the security furnished by an appellant. The jurisdiction in this regard is
clearly carved out for the registrar not the Court . The Court would – no doubt – be involved
when there is dissatisfaction with the decision of the registrar or the manner it was reached, but
that is a different issue. This is not the same as placing any responsibility on a respondent
regarding the furnishing of security , but only when a respondent has issues with the nature or
extent of the security filed by an appellant . For it would be irrational to expect anyone else
other than the respondent to be able to definitively state its concerns in this regard : before the
registrar in the first instance .
[40] The authorities appear to allow the Court to be involved including by way of striking
an appeal from the roll, where no security has been filed.36 I do not include in the latter category
an instance , such as the one propositioned by the respondent of labelling the security filed by
the appellants in this matter ‘meaningless ’. The ‘Security Bond’ filed by the appellants – warts
and all – is still security. In case it falls short of the requirements in the rule it is for the registrar
to determine. To treat this otherwise would amount to an overreach of the registrar’s
jurisdiction. It is also not eworthy that the respondent appears to have suggested an amount of
R356 725.40, but this appears to have bee n rejected by the appellants . But, the respondent as
with the appellants , ought to have a pproach ed the registrar for intervention in terms of Rule
36 TR Eagle Air (Pty) Ltd and another v Thompson (A206/2018) [2020] ZAGPPHC 801 (13 November 2020),
coram : Tlhapi, Mudau and Lenyai, at paras [15]-[20]; Jeanru Konstruksie v Botes [2023] ZAGPPHC
2169 at paras [7], [30] -[31]. See also Erasmus: Superior Court Practice RS 23, 2024, D1 Rule 49 -27 and
the other authorities cited under footnote 175 therein.
18
49(13)(b), as stated above. The fact that this was not done, doesn’t redound in either of the
parties ’ favour. Therefore, this ground for the striking is also dismissed.
Conclusion and co sts
[41] The Striking Application has fallen on all its legs. It really had no discernible or
meritorious purpose as the respondent did not really say that he was hampered in mounting his
opposition against the appeal due to any of the issues complained of. In the end , even with this
outcome, the appeal couldn’t proceed.
[42] As indicated above, the hearing of the Striking Application impeded the hearing of the
appeal. It took the greater part of the day allocated for hearing the appeal. In any case, due to
the significance and impact of the decision on the striking issues, the Court also required a
post-hearing opportunity to reflect on the issues and, thus, the possibility of an extemporaneous
ruling did not feature. This led to judgment being reserved in the Striking Application and the
appeal remaining in limbo , so to s peak. The appeal would have to be postponed sine die , now
that it has survived the respondent’s attempts to strike it from the roll.
[43] Bearing in mind what appears above, I do not think that the costs should follow the
outcome in terms of the convention of this Court. Although, the appellants succeeded in
swaying the Court not to strike the appeal from the roll, this outcome wasn’t without some
blemishes. This is borne by what appears above. Therefore, the appropriate order will be the
one where the costs of the application are to be costs in the appeal. The party who is ultimately
successful in the appeal deserves the benefit of the costs from the previous sitting, including
those that relate to the appeal itself .
[44] To avoid doubt, as the appeal was not struck from the roll, the order to be made below
will include a term postponing the appeal sine die and, as already stated, with no order as to
costs.
19
Order
[45] In the result, an order is made by the Court in the following terms :
a) Condonation is granted in favour of the appellants regarding their non -
compliance with Uniform Rule 7(2);
b) The application to strike the appeal in this matter from the roll is
dismissed;
c) The costs of the application in b) hereof shall be costs in the appeal, and
d) The appeal is postponed sine die with no order as to the wasted costs
occasioned by the postponement.
________ _______
Khashane Manamela
Acting Judge of the High Court
I agree
_____________________________
D Mahosi
Judge of the High Court
I agree
_______ ______________
SK Hassim
Judge of the High Court
p.p.
20
Date of Hearing : 14 August 2024
Date of Judgment : 14 February 202537
Appearances :
For the Applicant : Mr N.G. Louw
Instructed by : Manley Inc , Pretoria
For the Respondent : Mr H F Oosthuizen S C
Instructed by : WNA Attorneys Inc, Pretoria
37 Refer to paragraph [1] above.