THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 69/2024
In the matter between:
SIMON LINDSAY DRAYCOTT APPLICANT
and
MAX HURBERT BEGA FIRST RESPONDENT
SERGE PHILIPPE BEGA SECOND RESPONDENT
PIERROT SERGE BEGA THIRD RESPONDENT
ROSALYN MAY MAUD BEGA FOURTH RESPONDENT
DOUGLAS CRAIG HALL FIFTH RESPONDENT
Neutral citation: Simon Lindsay Draycott v Max Hurbert Bega and Others (69/2024)
[2025] ZASCA 123 (2 September 2025)
Coram: HUGHES, MEYER, WEINER, COPPIN JJA AND KUBUSHI AJA
Heard: 20 August 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and released to SAFLII. The date for hand down is deemed to be 2 September 2025
at 11h00.
2
Summary: Reconsideration in terms of s 17(2) (f) – lapsing of the reconsideration of
the appeal – no condonation for late filing of the heads of argument and the
reinstatement application – matter struck off the roll.
3
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REASONS
____________________________________________________________________
Hughes JA (Meyer, Weiner, Coppin JJA and Kubushi AJA concurring):
[1] On 20 August 2025, we granted an order striking the matter off the roll with costs
and indicated that reasons would follow. These are the reasons. The crisp question is
whether this Court can reinstate the application for reconsideration of the leave to
appeal, where the application for leave to appeal and condonation was referred to oral
argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 (Superior Courts
Act).
[2] The dispute in this case concerns the purchase and sale of two immovable
properties, Erf 547 and Erf 551, by the respondents from the applicant. The transfer of
the properties to the respondents occurred on 9 September 2016 and 12 September
2016, respectiv ely. However, it later emerged that the properties belonged to the
Ethekwini Municipality, and the applicant lacked the legal standing to sell the properties
because he did not own or hold title to them. Ultimately, the transfers of the properties
were set aside as a result of an urgent declarator granted on 6 September 2018. The
respondents successfully sued the applicant on 10 October 2022 for the amounts the
respondents paid for the properties. The applicant sought leave to appeal in the
KwaZulu-Natal Division of the High Court, Durban (the high court), which was refused.
He petitioned this Court, and on 16 November 2023, Goosen JA and Chetty AJA
refused leave to appeal, citing that there were no reasonable prospects of success and
no compelling reasons to grant leave.
[3] On 29 January 2024, the applicant applied in terms of s 17 (2)(f) of the Superior
Courts Act for condonation and reconsideration of the decision made by two judges of
this Court. On 6 March 2024, this Court, through Mocumie ADP, granted condonation
this Court. On 6 March 2024, this Court, through Mocumie ADP, granted condonation
and referred the decision to refuse leave to appeal for reconsideration . The following
order was issued:
‘1. Condonation as applied for is granted. The applicant for condonation is to pay the costs
of the application
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2. The decision of the court dated 16/11/2023 dismissing the applicant’s application for
leave to appeal with costs is referred to the court for reconsideration and, if necessary,
variation.
3. The application for leave to appeal and condonation is referred for oral argument in
terms of s 17(2)(d) of the Superior Court[s] Act 10 of 2013.
4. The parties must be prepared, if called upon to do so, to address the court on the
merits.
5. For this purpose the applicant is to file 6 copies of the initial application for leave to
appeal and 6 copies of the application in terms of s 17(2)(f) of the Superior Court[s] Act
10 of 2013, within one month of the date of this order and thereafter, to comply with the
rules of this Court by filing the records in terms of rule 8 within three months of this
order and both parties are to comply with all th e remaining rules relating to the
prosecutions of an appeal.
6. If the applicant does not proceed with the application, the applicant is to pay the costs
relating to the application for leave to appeal.’
[4] According to the above order, the records were due to be filed by 8 April 2024.
The applicant only filed the record on 12 April 2024. In terms of rule 10 of the Supreme
Court of Appeal Rules, the heads of argument, practice note, and list of authorities
were due to be filed by 16 August 2024, which is six weeks later. However, on 16
August 2024, the applicant attempted to file a letter with this Court's Registrar
requesting an extension to file the heads of argument, explaining that his counsel had
just reali sed the matter is complex and require d in-depth research. The applicant
requested a 10-day extension to submit those documents. According to an email from
the correspondent attorney of the applicant, the Registrar refused to accept the letter,
stating ‘[w]e will endeavour to obtain [an] extension on Monday, else you will have to
file a reinstatement/condonation application for the appeal together with your heads’.
file a reinstatement/condonation application for the appeal together with your heads’.
[5] The Registrar duly notified the applicant’s corresponding attorney that if the
heads of argument are not filed on time, and since the President of this Court has not
granted an extension, the appeal will automatically lapse. The Registrar of this Court
requested the applicant to submit a condonation and reinstatement application along
with the heads of argument.
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[6] According to the applicant’s attorney, they received the final drafts of the heads
of argument, practice note, and list of authorities from their counsel on 20 August 2024.
These documents and an application for reinst atement were filed at this Court on 29
August 2024, with no application for condonation as requested.
[7] Pertinently, what emerges from the reinstatement application affidavit, deposed
to by the applicant's attorney, are a few key points. The attorney attributes the delay to
his client’s failure to make a timely payment, which resulted in a delay in the drafting
of the documents. Additionally, the counsel and the attorney were involved in a full
bench appeal that consumed their time and delayed preparations in this matter.
Moreover, the counsel had taken on an acting judge role and lacked the time to focus
on this case. Lastly, the affidavit alludes to the fact that the applicant has good
prospects on appeal and that the attorney ‘apologise[s]…for the inconvenience [for]
the late filing of the heads o[f] argument, practice note and list of authorities may have
caused to the court and the respondent’.
[8] I now turn to the proceedings in this Court. The applicant had not sought
condonation for the late filing of its heads of argument. As emphasized in SA Express
Ltd v Bagport (Pty) Ltd, condonation for non-compliance with court rules is not a mere
formality and requires a satisfactory explanation not only for the initial delay but also
for any delay in seeking condonation, which must be applied for as soon as the party
becomes aware of the non-compliance.1 In terms of rule 10(2A)( a) of the Supreme
Court of Appeal Rules, failure to file heads of argument within the prescribed time and
without an extension would amount to the lapse of the appeal.
[9] In Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development
Company Ltd & Others 2, the court held that an appeal which had lapsed due to non -
Company Ltd & Others 2, the court held that an appeal which had lapsed due to non -
compliance with court rules could only be revived through an application for
condonation. In that case, the appeal had not been properly lodged and, by a letter
dated 2 March 2012, the registrar n otified the appellant that the appeal had lapsed.
1 SA Express Ltd v Bagport (Pty) Ltd [2020] ZASCA 13; 2020 (5) SA 404 (SCA); [2020] JOL 47309
(SCA).
2 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd & others
(619/12) [2013] ZASCA 5.
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The court referenced Court v Standard Bank of SA Ltd 3, where it was held that
condonation was required to revive a lapsed appeal. This principle was reaffirmed in
this Court in Moraliswani v Mamili 4, where Grosskopf JA confirmed that failure to
comply with Rule 6 causes an appeal to lapse and that condonation is necessary to
revive it. The Court further noted that this principle applies equally to a failure to lodge
the record within the prescribed p eriod. Accordingly, the appeal in that case lapsed
when the appellant failed to lodge the record as required and no application for
condonation had been brought. Rule 10(2A)(a) states that ‘If the appellant fails to lodge
heads of argument within the prescribed period or within the extended period, the
appeal shall lapse.’ An application for condonation is required to reinstate it.
[10] At the hearing of the matter, counsel for the applicant was constrained to the
view that the application was not properly before us, considering the facts outlined
above and the fact that the appeal had now lapsed due to the applicant's failure to seek
condonation for the late filing of the heads. The issue before us was the reinstatement
of the reconsideration for leave to appeal. The Registrar had informed the applicant
that the appeal had lapsed and requested that he file a condonation application and a
reinstatement application. He filed the reinstatement application without a condonation
application. Thus, the matter was not properly before us to consider whether to
reinstate the appeal.
[11] As a result, the matter was struck from the roll with costs on 20 August 2025.5
___________________
W HUGHES
JUDGE OF APPEAL
3 Court v Standard Bank of SA Ltd; Court v Bester NO & Others 1995 (3) SA 123 (A) at 139 F-H.
4 Moraliswani v Mamili 1989 (4) SA 1 (A).
5 Rule 11A of the Supreme Court of Appeal Rules: Non-compliance with Rules
The Court may make an order for costs to be borne personally by any party or attorney or counsel if
the hearing of the appeal is adversely affected by the failure of that party or his or her legal
representative to comply with these rules.
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Appearances
For the Applicant: I T Dutton
Instructed by: Sanjay Lorick & Partners, Durban
Symington De Kok Attorneys, Bloemfontein
For the Respondents: J A Ploos van Amstel
Instructed by: M/S Johan Oberholzer & Co, Durban
Green Attorneys, Bloemfontein