REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO.: A7/2025
( 1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGE\ NOJi_
(3) REVISED: NO ~
Date: 29 April 2025 E van der Schyff
In the matter between:
TIYANI STANLEY MACHEKE Appellant
and
MPHO RACHEL POOE Respondent
JUDGMENT
Van der Schyff J (8am J et Moshoana J concurring)
Introduct ion
2
[1] This is an appeal against the order and judgment handed down in case number
72144/2018 by Mudau J, on 8 November 2023. Leave to appeal was granted by the
Supreme Court of Appeal on 27 June 2024. The notice of appeal is dated and was
served on the respondent on 26 August 2024. The appellant's heads of argument
were filed on 28 March 2025.
[2] The respondent raised several points in limine in her heads of argument:
i. The respondent contends non-compliance with Rules 10 and 12 of the
Supreme Court of Appeal Rules;
ii. Uniform Rule 49(2) requires that where leave to appeal is granted to a Full
Court of a Division of the High Court, the notice of appeal must be delivered
within 20 days from the granting of leave to appeal. The notice of appeal was
filed only on 26 August 2024, and it was not accompanied by a condonation
application seeking the reinstatement of the appeal. The respondent
contends that the appeal has subsequently lapsed;
iii. Uniform Rule 49(13) requires an appellant to furnish security for the
respondent's costs unless such costs are waived by the respondent.
[3] The three points in limine are of a technical nature. It relates to procedural issues
and not to the merits of the appeal. The first point in limine is to be dismissed out of
hand. This appeal was heard by a Full Court of the High Court, Gauteng Division.
The Rules of the Supreme Court of Appeal do not apply.
[4] The second point in limine, raised by the respondent , is that the appeal has lapsed.
This point was raised in the heads of argument filed, but not restated as a point for
consideration in the joint practice note filed, a practice note that was only signed by
the respondent's attorney of record. Counsel for the respondent submitted, however,
that the respondent did not abandon its reliance on this point in limine. Since no
extension -, condonation -, or reinstatement application was filed, the question of
whether the appeal was timeously prosecuted remains alive.
[5] Uniform Rule 49(2) provides as follows:
2
3
'If leave to appeal to the full court is granted the notice of appeal shall
be delivered to all the parties within twenty days after the date upon
which leave was granted or within such longer period as may upon
good cause shown to be permitted.'
[6] The relevant timeline indicates that leave to appeal to the Full Court was granted by
the Supreme Court of Appeal on 27 June 2024. The notice of appeal thus had to be
filed on or before 25 July 2024. The notice of appeal is dated 26 August 2024 and
was served on the respondents on the same day. No application was brought for the
extension of time.
[7] The respondent's counsel submitted that the issue of the timely filing of the notice of
appeal was discussed between him and his co-counsel. He said that based on a
date stamp on the order granted by the Supreme Court of Appeal, they believed that
the notice of appeal was filed in time. Since the date stamp on the order is illegible
on the order filed on the Caseline file, I requested counsel to email a clear copy to
this court's registrar. This was not done, nor was a clearer copy of the document
uploaded to the electronic case file. Despite the court's inquiry into this aspect, no
application for postponement to allow for the filing of a condonation application was
forthcoming .
[8] Be that as it may, the order of the Supreme Court of Appeal granting leave to appeal
to this court is dated 27 June 2024. The correspondence addressed to the
appellant's attorneys by the registrar of the Supreme Court of Appeal, to which the
order was attached, dated 8 July 2024, likewise, confirms that the order was granted
on 27 June 2024. It is also stated in the notice of appeal that leave to appeal to the
Full Court of this Division was granted on 27 June 2024. No confusion could
reasonably have existed as to the date on which leave to appeal was granted.
[9] In the absence of an application for the extension of time or a subsequent
condonation or reinstatement application , the court is not in a position to determine
whether good cause existed that would justify the extension of the time for delivering
the notice of appeal. In the absence of an application for the extension of time or a
3
4
condonation application brought when the appellant became aware of the point in
Jimine being raised, the appeal cannot be said to have been prosecuted as provided
for in terms of the Uniform Rules of Court. At best for the appellant, it can be said
that the appeal lapsed.
[1 O] Rule 49(6) provides that a court may, on good cause shown, reinstate an appeal
which has lapsed. Goosen JA explained in Members of the Executive Council for
Health, Eastern Cape Province v Y N obo E, 1 that the touchstone for a reinstatement
application is the interests of justice, which depends on the facts and circumstances
of each case. He qualified that although the prospects of success on appeal are
generally an important consideration in relation to the reinstatement of an appeal, it
is not decisive. He continued :2
'Where the degree of non-compliance is flagrant and substantial ,
condonation may be refused irrespective of the prospects of success.
If the explanation for such flagrant and substantial non-compliance is
manifestly inadequate or there is no explanation , the prospects of
success need not be considered. '
[11] As said above, no reinstatement application was issued. A court cannot, on its own
accord, grant an extension of time under rule 49(2) or reinstate an appeal that has
lapsed in terms of rule 49(6). To do so would deprive a respondent of the opportunity
to raise grounds opposing the extension of time or reinstatement of the appeal. The
appeal thus stands to be struck off the roll with costs.
[12] In light of the above, it is not necessary to determine the third point in limine.
[13] A shortcoming in this appeal not raised by the respondent , is that no proper appeal
record was filed. The appellant's legal team seems to have been under the
impression that, since all papers were previously filed on the Caseline's file,
preparing an appeal record as required in Rule 49 was unnecessary . To make
matters worse, no appeal record index was filed.
1 (056/2021) [2023] ZASCA 32 (30 March 2023) at para [7].
2 Member of the Executive Council for Health, Eastern Cape Province, supra, at para [14].
4
5
[14] When an appeal is not prosecuted timeously as provided for in the Uniform Rules of
Court, the court has no jurisdiction to consider the matter on appeal. A lapsed appeal
is deemed to have ended, and the court's jurisdiction to hear it ceases unless an
application for reinstatement or condonation is granted. In the circumstances, it
would not be appropriate for this court to consider the appeal on the merits. We
pause to note, however, that we hold the view that there are no prospects of success
on the merits. It is a well-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and slow to interfere
therewith unless it is convinced on a conspectus of the evidence that the trial court
was clearly misdirecting itself and was clearly wrong.3 On our reading of the
transcribed record, there is no reason to substantiate a view that Mudau J, who was
steeped in the atmosphere of the trial, and applied the applicable legal principles,
was wrong.
ORDER
In the result, the following order is granted:
1. The appeal is struck from the roll with costs.
I agree.
, N Barn
Judge of the High Court
I agree
3 S v Pistorius 2014 (2) SACR 315 (SCA) para [30], R v Dhlumayo 1948 (2) SA 677 (A).
5
6
N Moshoana
Judge of the High Court
Delivered : This judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines .
For the appellant:
With:
Instructed by:
For the respondent:
Instructed by:
Date of the hearing:
Date of judgment:
6 Adv. D.D. Mosoma
Adv. T.I. Ngwana
Denga Incorporated
Adv. Z. Rasekgala
Mothemane Given Attorneys
14 April 2025
29 April 2025