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[1991] ZASCA 196
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Union Wine Ltd. v E Snell & Co Ltd. (324/90) [1991] ZASCA 196 (29 November 1991)
Case No 324/90
IN THE SUPREME COURT OF
SOUTH AFRICA
(
APPELLATE DIVISION
)
In the appeal of:
UNION WINE LIMITED
Appellant
and
E SNELL & CO LIMITED
Respondent
CORAM
: CORBETT CJ, HEFER et
NESTADT JJA, NICHOLAS et HARMS AJJA.
DATE OF APPEAL
: 8 November 1991
REASONS FOR ORDER HANDED IN ON
: 29 November 1991
REASONS
CORBETT
CJ:
GRIFFIER, HOOGGEREGSHOF
1
CORBETT
CJ:
In the Court a quo, the Cape of Good Hope Provincial Division ("the CPD"),
Union Wine Limited ("the applicant") instituted motion
proceedings on 16 October
1989 against E Snell & Company Limited ("the respondent") claiming an
interdict restraining the respondent
from using the name "Johannisberger" in
relation to any wine advertised, marketed, sold or distributed by it. In brief,
the applicant's
case was that the respondent's use of the name "Johannisberger"
in respect of a wine marketed by it constituted unlawful competition
vis-á-vis the applicant. The matter was heard on 14 and 15 November 1989
by Van Deventer AJ who dismissed the application
with costs. His judgment, which
was delivered on 29 November 1989, has been reported (see
Union Wine Ltd v E
Snell and Co Ltd
1990 (2) SA 189
(C) ). As appears from the judgment, Van
Deventer AJ upheld a defence based upon the exceptio rei judicatae
2
and dismissed the application on this ground. The defence of res judicata was
founded on a judgment delivered by Didcott J in the
Durban and Coast Local
Division on 12 September 1989 in an application brought by applicant against
respondent claiming the same
relief in regard to the use by respondent of the
name Johannisberger. This judgment has also been reported (see
Union Wine Ltd
v E Snell & Co Ltd
1990 (2) SA 180
(D) ). In addition to upholding the
defence of res judicata Van Deventer AJ considered the merits of the claim of
unlawful competition
and came to the conclusion that it was not
well-founded.
With the leave of the Court a quo applicant appealed to this Court. At the
hearing we heard argument on certain applications by the
applicant for
condonation of non-compliance with the Rules of the Appellate Division, the
nature of which I shall detail later. At
the conclusion of the argument this
Court decided to dismiss the
3
applications and the following order was made:
"For reasons to be filed later, the applications for condonation are dismissed
with costs, such costs to include the costs of two
counsel. Accordingly, the
appeal is struck off the roll with costs, such costs to include the costs of two
counsel."
These reasons now follow.
As I have indicated, judgment in this matter was given by Van Deventer AJ on
29 November 1989. On 18 December 1989 applicant served
upon respondent notice of
its intention to apply for leave to appeal. The learned Judge heard and granted
the application on 8 March
1990. He directed that the appeal be to the Appellate
Division. In terms of AD Rule 5(1 ) (d) , read with the def inition of "business
day" in AD Rule 1, applicant's notice of appeal should have been lodged with the
registrar of this Court, the registrar of the CPD
and the respondent by not
later
4
than 9 April 1990. A proper notice of appeal was not
lodged with the registrar of this Court until 24 July 1990.
This notice is dated 17 July 1990 and was lodged with the registrar of the
CPD and the respondent on 19 July 1990. (These facts emerge
from the original
notice in the court file.) The applicant was thus more than three months out of
time with the lodging of its notice
of appeal.
In terms of AD Rule 5(4) (b) the applicant was further obliged to lodge with
the registrar of this Court and to deliver to the respondent
the required number
of copies of the appeal record (which runs to 187 pages) on or before 7 June
1990. The record was in fact not
filed until 14 July 1990; and a copy thereof
was received by respondent's Bloemfontein attorney only on 25 July 1990. This
record
was incomplete in that it did not include a copy of the application
papers in the matter which came before Didcott J, which papers
were placed
before the Court a quo
5
and formed part of the record. A volume containing the papers in the Natal
case was not lodged with the registrar of this Court until
28 June 1991.
On
24 July 1990 applicant lodged with the registrar of this Court a petition for
the condonation of its failure to lodge the notice
of appeal within the period
prescribed by the rules. And on 25 October 1990 applicant filed with this Court
a similar application
in respect of the late lodging of the record of appeal.
Both applications were opposed by the respondent.
In accordance with AD Rule 5(3) bis (a) the applicant's attorney was obliged,
within 21 days of the lodging of the notice of appeal,
to lodge with the
Registrar a power of attorney authorizing him to prosecute the appeal. This was
not done. And in fact appellant
and its legal advisers became aware of this
non-compliance only on the eve of the hearing before this Court. Consequently at
the
6
hearing applicant's counsel tendered such a power of attorney (dated 7
November 1991) from the bar, together with a petition of the
same date for an
order condoning the late filing of the power of attorney. This application was
also opposed.
(I have referred to the relevant AD rules as they were before their amendment
by government notice no R2408, published in the Government
Gazette no 13558 on
30 September 1991, since those were the rules which had to be complied with at
the time.)
This is indeed a woeful tale of non-compliance with the rules of this Court
and one looks to see what explanation is tendered by the
applicant.
The petition for condonation of the late filing of the notice of appeal is
subscribed by a Mr C C Smit, who describes himself as a
director of the
applicant. In the
7
petition the general statement is made that "as a result of unavoidable and
intervening circumstances" it was not possible to file
the notice of appeal
timeously. The petition proceeds:
"5 In order to consider the merits of the proposed appeal properly, advice
and opinion of the legal advisers of your petitionary has
been sought. From the
opinion it was evident that it would take a considerable period of time before
the appeal could be heard. This
appeal is of considerable financial impact to
your petitionary as the respondent may proceed marketing its product pending the
outcome
of the appeal.
6 Your petitionary conducts business on a nationwide scale, including
neighbouring states. In order to establish the effect of the
marketing action by
the respondent upon the business of your petitionary a brief survey by the
sales
8
personnel was requested for presentation to the Board of Directors to assist
in the consideration whether to proceed with the appeal
or not. This survey
caused a delay.
7.
In addition your petitionary
appointed another chief executive on 1st March 1990 who needed time to acquaint
himself with the background
of this case. Your petitionary furthermore holds
director's meetings only on a quarterly basis and at the time of the previous
meeting
in February 1990, the leave had not yet been
granted.
8.
As a result of several factors the
decision to continue with the appeal was delayed to such an extent that the
appeal could not be
lodged timeously."
I find these
explanations for the failure to file the notice of appeal vague, to a great
extent irrelevant and completely unconvincing.
As regards advice respecting
the
9
merits of the appeal (see par 5 above), there is no indication as to when the
opinion was sought. It appears from a replying affidavit
filed on applicant's
behalf and deposed to by Mr W D Terblanche, applicant's managing director, that
this opinion was obtained from
counsel. Before launching the application, so
proceeds the explanation, counsel had advised that there were reasonable
prospects
of an interdict being granted as prayed, but after the dismissal of
the application applicant considered it prudent to ask counsel
to reconsider the
decision and advise on applicant's prospects of success on appeal. This opinion
was received on Monday, 2 May 1990.
Terblanche, too, does not say when
counsel was briefed to give this opinion. The proper time to have briefed him
would have been soon
after the dismissal of the application on 29 November 1989.
I cannot believe that, had counsel been briefed in good time, he would,
in
the
10
light of the urgency of the matter, have delayed giving his opinion until 2
May 1990. Indeed, if there had been undue delay on the
part of counsel, the
relevant facts should have been placed before this Court. Generally I am
unconvinced that counsel's opinion
had anything to do with the delays which
occurred in complying with the Rules. After all applicant filed and pursued its
application
for leave to appeal without counsel's opinion. Moreover, nowhere in
the affidavits is the unequivocal statement made that the notice
of appeal was
held back because applicant was awaiting counsel's opinion. Bearing in mind,
too, the emphasis laid on the other excuses
advanced by applicant, viz the need
for a marketing survey, the assumption of office by a new chief executive, the
monthly board
meetings and the misplacing of a court file in the offices of the
registrar of the CPD (with all of which I shall deal later), the
matter of
counsel's opinion appears to me to be a red herring.
n
Par 6 of the petition, quoted above, deals with the alleged delay caused
by a need to establish by market survey the effect of respondent's
actions on
the applicant's business. In Terblanche's affidavit this point is further
elaborated. It appears that applicant itself
"conducted enquiries on a
nation-wide scale". It also wished to have regard to a survey report on the
liquor industry issued on a
two-monthly basis by a firm of marketing research
consultants known as IBIS in order to establish how well respondent's wine,
marketed
under the name Johannisberger, was selling. The IBIS report for the
period December 1989/January 1990 was due to become available
in March and that
for the period February/March 1990 in May. When the former report came out it
was discovered that respondent's
Johannisberger was not yet separately listed
therein. Terblanche does not say that applicant waited for the May report before
filing
its notice of appeal and that this caused delay. On the contrary, nothing
is said which
12
explains the relevance of this IBIS report to the question of delay. The
awaiting of the March report could not have delayed the filing
of a notice in
April. As to applicant's own investigations regarding the success of
respondent's Johannisberger wine, there are no
concrete statements as to when
the survey was completed and whether it was a cause of the delay. Generally
speaking, this whole question
of market investigations strikes me as being a
second red herring.
The third excuse or explanation for the delay proffered by the applicant is
that set out in the first sentence of par 7 of the petition,
quoted above, viz
the appointment on 1 March 1990 of a new chief executive (Terblanche) "who
needed time to acquaint himself with
the background of this case". This point is
also elaborated in Terblanche's replying affidavit in which he says that he had
to familiarize
himself with all the facts and
13
circumstances of the case in order "to make a contribution to the decision as
to whether the appeal should be proceeded with or not".
In order to explain why
it was not possible for him to do this between the date when he commenced duties
(on 5 March 1990) and the
critical date when the notice of appeal had to be
filed (9 April 1990) Terblanche states that there -
".... were many other crises to be dealt with and many other important
routine functions
which I had to attend to during the period
March to May 1990."
He proceeds to
emphasize what a large company the applicant is and to state that because of
these circumstances the decision to proceed
with the appeal was arrived at a few
days before 8 May 1990.
This excuse is wholly unacceptable. I find it difficult to believe that there
was not time for Terblanche
14
to give his attention to the question of pursuing the appeal prior to 9 April
1990; or that the other matters to which he did give
attention were more
pressing than the need to comply with the rules of this Court. Be that as it
may, if a litigant decides to so
arrange his priorities that compliance with
appellate procedures takes second place to his ordinary business activities,
then he
must not complain if this Court decides to refuse him the indulgence of
an order of condonation. In any event, Terblanche's excuses
hardly explain how
it came about that the notice of appeal was not filed until mid-July.
A "further problem" mentioned by Terblanche in his replying affidavit was the
fact that applicant's national marketing manager, Mr
S Burger, had to travel
extensively during the months of March and April 1990. As Burger had been the
official who primarily dealt
with this matter when it was before the Court a quo
and as Burger was intimateiy
16
1990 meeting leave to appeal had not yet been granted. This is, if anything,
the lamest excuse of all; and, it is to be noted, it
is not mentioned in
Terblanche's affidavit. Again the averment in the petition is notable for its
vagueness and nowhere is it stated
that this factor caused a delay in the
lodging of the notice of appeal. I should have thought that the board would have
authorized
the appeal prior to the application for leave to appeal.
Alternatively, it could at its February meeting have given conditional
authorization
dependent on leave being granted. Or, if a board meeting was
necessary to authorize the lodging of a notice of appeal after leave
was
granted, a special meeting of the board should have been called.
Applicant's attorney, Mr Feenstra, made a brief affidavit in support of the
application and a longer one in reply. He submits that
there was no undue delay
in filing the relevant documents with this Court, including the notice
17
of appeal. As an excuse for the lateness of the lodging of the notice of
appeal he cites the fact that his Cape Town correspondent
experienced difficulty
in obtaining a certified copy of the order granting leave to appeal, which in
terms of AD Rule 5(1) had to
be attached to the notice of appeal. His
correspondent "approached" the Registrar of the CPD to obtain such a certified
copy on 2
April 1990, but from 2 April to 24 April 1990 "some delay" was caused
by the fact that the Court file could not be found in the Registrar's
office.
This explanation is subject to a number of criticisms. Feenstrá does not
explain why he left it until 2 April 1990
before seeking to obtain a copy of the
court order. It seems to me to be unlikely that a court file could have
disappeared for three
weeks, especially if a determined effort to obtain the
order were made by applicant's attorneys. And in any event, there is no
explanation
for the further delay, from 24 April to mid-
18
July in the lodging of the notice of appeal.
I turn now to the late lodging of the record of appeal. Here it must be
pointed out that in terms of AD Rule 5(4)(c) the normal period
for the lodging
of the record may be extended if the respondent agrees thereto in writing. In
his replying affidavit Mr Feenstra
appears to be under the impression that in
terms of the Rule applicant had until 25 June 1990 to lodge the record. As I
have indicated,
this is not so. The record had to be lodged by 7 June 1990. Mr
Feenstra further avers that it was not possible for the record to
be lodged
timeously as the firm Snellers, which was attending to the preparation of the
record, was not able to "complete the record
in time"; and that this caused "a
further delay". Again one is struck by the vagueness of the explanation. Mr
Feenstra does not say
when the record was ordered; and when it was received. As
respondent's counsel pointed out, the transcriber's
19
certificate shows that the record was completed on 8 June 1990 and checked
and corrected by 13 June 1990. In the circumstances it
was incumbent on Mr
Feenstra to explain why there was a further delay of more than a month before
the record was lodged; and in any
event why he (apparently) did not approach the
respondent with a view to obtaining the latter' s consent to an extension of the
time
f or the lodging of the record. The omission from the record of the Durban
papers and the long delay before they were lodged (in
June 1991) is also not
explained.
The failure, until the date of the hearing, to file a power of attorney is
ascribed by applicant's attorney to "an oversight". It
is difficult to
understand how an attorney, charged with the duty of taking the procedural steps
laid down by the Rules for the prosecution
of an appeal, could overlook so
obvious and essential a requirement. To do so amounted, in my opinion, to
gross
20
negligence.
It has been laid down frequently by this Court that an application for
condonation is required to be made as soon as the party concerned
realises that
the Rules have not been complied with (see
Ferreira v Ntshingila
1990 (4)
SA 271
(A), at 281 D and the cases there cited). Applicant's attorney was
alerted by respondent's attorney on or about 11 April 1990 that
applicant was
out of time with the lodging of its notice of appeal and that it was necessary
to apply for condonation. Yet the application
for condonation was filed only
towards the end of July 1990. Mr Feenstra says that he was advised to complete
the appeal record before
submitting the petition for the late filing of the
notice of appeal. Furthermore the original petition was drafted in Afrikaans
and,
on the advice of his Bloemfontein correspondent, Mr Feenstra redrew it
in
21
English. Mr Feenstra does not say who advised him to delay filing the
application for condonation until the record was ready for filing.
In any event
it was bad advice. The redrafting of the petition in English does not appear to
have materially affected the position.
There is no explanation on the papers for
the further delay, until October 1990, in the lodging of the petition for
condonation of
the late filing of the appeal record.
The principles which are applicable to applications of this kind were
recently restated in the matter of
Ferreira v Ntshingila
, supra, at 281C
- 282 A. In all the circumstances this Court came to the conclusion that the
non-observance of the Rules in the present
case had been so flagrant and gross
that irrespective of the merits of the appeal the applications for condonation
should be refused.
The above-quoted order was accordingly made. I would merely
add that, as I explained in court, the second
22
costs order is intended to include the costs of appeal.
HEFER JA) NESTADT JA) CONCUR NICHOLAS AJA) HARMS AJA)