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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA )
CASE NO.: 33/2020
In the matter between:
MALUSI NDAYI Appellant
and
MINISTER OF POLICE Respondent
JUDGMENT
TOKOTA J
Introduction
[1] One Malusi Ndayi (the deceased) instituted an action in the
Magistrate’s Court, Tsolo district , against the respondent claiming damages
arising from the alleged unlawful arrest and detention. The respondent
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resisted the claim. The Magistrate dismissed the claim with costs. The
appeal is against that order.
The Process of Appeal
[2] The process of the appeal has been so carelessly handled to the extent
that it becomes unnecessary to deal with the merits thereof. Consequently, I
deem it expedient to deal with the process followed in the prosecution
thereof in order to establish whether or not a foundation has been laid for
this Court to entertain the appeal.
[3] Section 84 of the Magistrates' Court Act 32 of 1944 provides, inter
alia, that every party noting an appeal shall do so within the period and in
the manner prescribed by the rules. The periods for noting an appeal are laid
down by Rule 51(3) of the Magistrate's Court rules and the periods for
prosecuting appeals from the Magistrate’s Court in the High Court are
governed by Rule 50 of the Uniform Rules of Court. In other words,
although the noting of an appeal is an act done in the Magistrate's Court, it
lays the foundation of the proceedings in the High Court.
[4] An appeal must therefore be noted within the period and in the
manner prescribed by Magistrate's Court Rule 51 and prosecuted within the
period and in the manner prescribed by Rule 50 of the Uniform Rules of
Court. In the present appea l before us, the Magistrate delivered a written
judgment on 3 March 2020.
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[5] There was no request by the appellant for judgment in writing as
provided for in Rule 51(1) of the Magistrates' Court rules. Rule 51(3)
provides, inter alia, that an appeal may be noted within 20 days after the date
of the judgment appealed against. This will be the case where an appellant
has not made a written request for judgment in writing as provided for in
Rule 51(1) of the Magistrates' Court rules.
[6] A notice of appeal was served on the respondent or his attorney on 25
August 2020. Rule 51(4) provides that an appeal shall be noted by the
delivery of notice, and, unless the court of appeal shall otherwise order, by
giving security for the respondent’s costs of appeal to the amount of R1000.
[7] In this matter the appeal was not served on the respondent within the
prescribed period, and, in addition, no security for costs was paid as
provided for in the rules . In light of the failure to compl y with the rules by
bringing the appeal to the notice of the other party in a manner which is in
accordance with that prescribed by the rules, there is no foundation for the
appeal.1 Counsel for the appellant has conceded that there is no proof filed
of record to indicate that security for costs has been paid. Incidentally, in the
affidavit filed in relation to costs of the appeal , Mr S Vapi has attached a
notice of appeal dated 15 May 2020 which was never served on the
respondent.
1 Nunlal v Pillay 1948 (4) SA 720(N) at 721 ; Botha and Another v Hendriks N.O and
Others (700/2008) [200 8] ZANCHC 25 (6 June 2008)
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[8] Rule 51(8) of the Magistrate's Court rules provides, inter alia, as
follows:
"(8)(a) Upon delivery of a notice of appeal the relevant judicial officer shall within 15
days thereafter hand to the registrar or clerk of the court a statement in writing showing
(so far as may be necessary having regard to any judgment in writing already handed in
by him or her) -
(i) the facts he or she found to be proved;
(ii) the grounds upon which he or she arrived at any finding of fact
specified in the notice of appeal as appealed against;
(iii) and
his or her reasons for any ruling of the law or for the admission or rejection of any
evidence so specified as appealed against.
(b) A statement referred to in paragraph (a) shall become part of the record".
[9] The provisions in sub-rule (8)(a) are mandatory. The Magistrate's
written explanation forms an integral part of the appeal record and serves to
assist the Court of Appeal in dealing with the appeal in a speedy and cost-
effective manner.2
[10] If a notice of appeal has been filed witho ut a prior request for the
Magistrate's written judgment in terms of Rule 51(1), as in this case, the
Magistrate must thereafter give his findings of fact and rulings of law in
2 Regent Insurance Co Ltd v Maseko 2000 (3) SA 983 (W) at 990A -E)
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terms of subrule (8)(a). A Magistrate is entitled, despite having given
reasons, to give further reasons dealing specifically with any ground of
appeal set out in the Notice of Appeal.
[11] Rule 51(9) reads in relevan t part as follows:
"(9) A party noting an appeal .... ...shall prosecute same within such time as may be
prescribed by rule of the Court of appeal and, in default of prosecution, the appeal. ....
shall be deemed to have lapsed, unless the Court of Appeal shall see fit to make an order
to the contrary "
Prosecution of an appeal is meant by applying in writing to the registrar of
the High Court on notice to all other parties, for a date of hearing.3
[12] As stated above the prosecution of appeals from Magist rates' Courts is
dealt with in terms of Rule 50 of the Uniform Rules of Court. The relevant
time limits prescribed by Uniform Rules 50(1) to (4) are as follows:
(a) the appeal must be prosecuted within 60 days after the noting there of;
(b) if the appellant has not within 40 days after noting the appeal applied
to the registrar for a date of hearing, the respondent may do so within the
remaining 2 weeks;
(c) if no application for a date of hearing is made by either the appellant
or the respondent within 60 days, the appeal lapses.
3 See Rule 50(4) of the Uniform Rules of Court; Hall v van Tonder 1980(1)SA 908 (C) at 910E
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[13] In terms of Rule 50(5) of the Uniform Rules of Court the registrar
shall , upon receipt of the appellant’s written application for the assignment
of a date, forthwith assign a date of hearing of the appeal, which date shall
be at least 40 days after receipt of the said application. The registrar shall
give the parties and the clerk of Court from which the appeal emanated, at
least 20 days, written notice of the date of set down.
[14] Having set out herein above the prescribed procedure in civil appeals,
it remains to be seen whether in the present appeal that the rules regulating
the appeals from Magistrate Court to the High Court have been complied
with. In what follows I will demonstrate that there was a flagrant disregard
of the rules.
15] On the papers before us, it is clear that the appeal was not timeously
noted as provided for in the Magistrate's Court rules. Counsel for the
appellant was asked if the notice was filed timeously as prescribed and he
conceded that it was not. The judgment was delivered on 3 March 2020 and
the appeal was filed on 25 August 2020 more than five months after the
delivery of judgment. There is no written application to the registrar by the
appellant or his attorneys for the hearing date as required in terms of Rule
50(4)( a). There is also no evidence that the registrar allocated a hearing date
in terms of Rule 50(5). There is no application for condonation for the late
filing of the appeal.
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[16] The appellant somehow procured the enrolment of the appeal by the
registrar of this Court for hearing without following the procedure
prescribed in Magistrate's Court rule 51(9) and Uniform Rule of Court 50(1),
(4) and (5) for prosecuting the appeal. Furthermore , there is no indication in
the indexed and paginated bundles that the appellant had applied for a date
for the hearing of the appeal within the period provided for in the Uniform
Rule of Court 50 (4)(a).
[17] In addition , the following irregular steps are apparent from the papers
before us:
(a) Appell ant passed away on 4 November 2022 . Since the appellant is
deceased the appeal can only proceed if there is a substitution of the party. In
terms of Uniform Rule 15(3) , where a party to the litigation dies or ceases to
be capable of acting as such, his executor, curator or similar legal
representative may by notice to all other parties intimate that he desires in
his capacity as such thereby to be substituted for such party. Attorneys for
the deceased simple filed a notice that “the late Appellant, Mlamli Ndayi is
hereby substituted by his wife Tandiswa Ndayi to continue with the
prosecution of the appeal herein”. Even the purported substitution has not
been perfected because the appellant is still the deceased. Furthermore, it is
not stated on what basis is the purported substitution made save for the
assertion that she is the wife of the deceased, which is disputed by the
respondent. It transpired during argument that she is not even an Executrix
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of the deceased estate . We were told that she is the wife of the deceased and
is going to apply for the appointment as the Executr ix of the deceased estate .
(b) the appellant chose not to request a written judgment from the
Magistrate in terms of rule 51(1);
(c) since the appellant filed the notice of appeal on 25 August 2020, a
period of more than five months after the delivery of judgment, an
application for condonation thereof should have been made . This was not
done.
(d) the Magistrate was not called upon to hand down a written statement as
required by rule 51(8) to the clerk of the Magistrate's court;
(e) The security for costs was not paid and no exemption was sought in
this regard as required by the rules.
(f) Despite demand by the respondent in the notice dated 5 February
2025 there is no special power of attorney , either by the deceased or so-
called substitute , to prosecute the appeal.
[18] In light of the above , there is no appeal properly before us. We do not
have a party as the plaintiff is deceased and there is no proper substitution.
Counsel for the ‘appellant’ indeed conceded that there is no proper
substitution. For this reason, he submitted that the matter be postponed to
enable them to bring a proper substitution for the ‘appellant’. I do not agree
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that the matter can be postponed. There is no legal basis for the
entertainment of the appeal especially in the absence of a power of attorney
by the deceased . For these reasons the appeal falls to be struck off the roll.
Costs:
[19] What remains is a question of costs. As matters stand there is no
appell ant before us. The question therefore is who must pay the costs in the
event of us striking the matter off the roll.
[20] In view thereof that the respondent has been dragged to court someone
has to indemnify him for his costs. For this reason, we adjourn ed the
proceedings and made an order that the attorneys for the appellant /deceased
should deliver an affidavit to show cause why an order of costs cannot be
made against them de bonis propriis . We gave them ten days, five of which
they had to deliver an affidavit, and five of which the respondent was given
an opportunity to respond thereto , if so advised.
[21] The general principle of awarding costs de bonis propriis applies
when a person acts or litigate s in a representative capacity.4 Where a party or
its legal representative flagrantly disregard s the prescribed procedure or has
adopted the wrong procedure this could result in that party being held liable
for costs.
4 Moller v Erasmus 1959 (2) SA 465 (T) 467 C.
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[22] In SA Liquor Traders ‘Association and Others v Chairperson, Gauteng
Liquor Board and Others ,5 the court said the following:
‘an order of costs de bonis propriis is made against attorneys where a court
is satisfied that there has been negligence in a serious degree which warrants
an order of costs being made as a mark of the court’s displea sure. An
attorney is an officer of the court and owes a court an appropriate level of
professionalism and courtesy.’
[23] In Multi -Links Telecommunications Limited v Africa Prepaid Services
Nigeria Limited ,6 the following was said:
‘Costs are ordinarily ordered on the party and party scale. Only in
exceptional circumstances and pursuant to a discretion judicially exercised is
a party ordered to pay costs on a punitive scale. Even more exceptional is an
order that a legal representative should be ordered to pay the costs out of his
own pocket. The obvious policy consideration underlying the court’s
reluctance to order costs against legal representative personally, is that
attorneys and counsel are expected to pursue their client’s rights and interest
fearles sly and vigorously without due regard for their personal convenience.
In that context, they ought not to be intimidated either by their opponent or
even, I may add, by the court. Legal Practitioners must present their case
fearlessly and vigorously, but always within the context of a set ethical rules,
5 2009 (1) SA 565 (CC) at para 54
6 2013 (4) ALL SA 346 GNP at para 34.
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that pertain to them, and which are aimed at preventing practitioners from
becoming party to deception of the court. It is in this context that society and
the courts and professions demand absolute personal integrity and
scrupulou s honesty of each practitioner.’
[24] An order of costs de bonis propriis is not easily made but those costs
are usually awarded under exceptional circumstance s where theer is
negligence of a serious degree . The difficulty I have in this matter is that the
negligence of the ttorneys is so gross that it invokes moral indignation.
Despite the notice in terms of Uniform Rule 7 by the respondent for the
delivery of a special power of attorney the attorneys for the deceased
persisted with the matter well knowing that there is none.
[25] Indeed, it is true that legal representative s sometimes make mistakes
of law, or omit to comply with the rules of court,7 but these mistakes should
not be blatant, obvious or litigat ed recklessly.
[26] Having outlined the principles above I now proceed to consider
representations as contained in the attorneys’ affidavit. The affidavit
addresses two issues, namely, failure to deliver a proper substitution, and
7 Multi -Links note 6 supra
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failure to remove the matter from the roll. The affidavit has been deposed to
by Mr Sifundo Vapi of S Vapi Inc. There is no explanation for the negligent
disregard of the court s’ rules.
Authority to prosecute the appeal
[27] According to the explanation by Mr Vapi , the appeal was noted in the
Magistrate’s Court on 20 May 2020 and again in the High Court on 25
August 2020. The purported appeal of 20 May 2020 was never served on the
respondent. That appeal was in any event also already out of time. No
explanation is proffered in regard thereto.
[28] Appellant passed away on 4 November 2022. There is no special
power of attorney by the deceased to lodge and prosecute an appeal. There is
no explanation for this omission by Mr Vapi. I take it since this was also
raised during oral argument it should have been addressed and, if any special
power of attorney was available , it should have been attached to the
affidavit. This has not been done. He only attached the purported special
power of attorney by Mrs Thandiswa Ndayi. This is unhelpful. Mrs Ndayi is
not a party to the litigation and could only substitute a valid special power of
attorney by the deceased. For that matter if Mrs Ndayi was an Executrix she
could simply substitute the deceased without having to file a special power
of attorney. Attaching a power of attorney by a non-litigant is putting
lipstick on a pig’s mouth .
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[29] In light of the above , Mr Vapi had no mandate to pursue an appeal on
behalf of the deceased. Mrs Thandiswa Ndayi had nothing to substitute.
Accordingly, the appeal ought to have been withdrawn once it was learnt
that the plaintiff had passed on.
[30] Mr Vapi explained that he wanted to remove the matter from the roll
but could not do so because Mrs Ndayi was refusing to accept his advice.
Where a client is not prepared to accept legal advice by his or her legal
representative the appropriate thing to do is to withdraw from the case. It is
no excuse to say that Mr Vapi “lacked instruction to remove the matter or
risk termination of mandate”. Had he withdr awn as attorney of record he
would not be facing this risk of an order of costs against him.
[31] In any event , the affidavit falls short of an explanation as to why there
was a flagrant disregard for the court s’ rules. This aspect reflects the
dereliction of duty and lack of professi onalism by the attorney concerned .
The condonation application in regard to the reinstatement of the lapsed
appeal is in any event poor and does not cover all aspects of the defects of
the case.
[32] It is trite that costs are awarded to a successful party in order to
indemnify him for the expense to which he had been put through having
been unjustly compelled to defend litigation. In any event , such an award is
never a complete indemnity; but that does not affect the principle upon
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which it is based.8 I am not persuad ed that there should be no order as to
costs in this matter. Since there is no party before the court we do not have a
choice but to mulct the firm of attorneys who set the matter down for
hearing.
Order
[33] In the result , I make the following order:
1 The appeal is struck from the roll.
2. Mr S Vapi attorney of S Vapi attorneys is ordered to pay costs
de bonis propriis on scale C of Rule 67A.
B R TOKOTA
JUDGE OF THE HIGH COURT
I agree:
M MHAMBI
ACTING JUDGE OF THE HIGH COURT
8 Texas Co. (SA) Ltd v Cape Town Municipality 1926 /ad 467 at 488
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APPEARANCES:
For the Appellant : M Xozwa
Instructed by : S Vapi attorneys
Mthatha
For the Respondent : Mr M Zilani
Instructed by : M Zilani attorneys
Mthatha
Heard on : 21 February 2025
Judgment Delivered on : 25 March 2025.