REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: A293/24
(Appeal)
Case No: 2679/19
(Magistrates’ Court)
In the matter between:
MARIA E VAN NIEKERK Appellant
(t/a Hansie en Grietjie Kleuterskool en Naskool)
and
SEARTEC TRADING (PTY) LTD Respondent
JUDGEMENT
_____________________________________________________________________________________________
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
___ _____
DATE SIGNATURE
2
MOOKI J
1 The present appeal concerns an appeal from the Magistrates ’ Court that
was noted on 11 April 2024. The appellant sought condonation for the late
noting of the appeal as the appeal should, in fact, have been noted by 25
October 2024.1
2 On 9 April 2024 2 the respondent brought an application to have the appeal
struck. In response, the appellant launched an application for condonation.
The primary basis for striking the appeal is that the appellant did not note
the appeal in the Magistrates’ Court before seeking to prosecute the appeal
in the High Court. The respondent raised, as a further ground for the
striking off, that the appellant failed to prepare the appeal record as
prescribed in the rules and practice directives.
3 The respondent’s ca se for the striking-off was based on the following: the
attorneys for the respondent wrote to the attorneys for the appellant on 28
October 2024, pointing out that the last day for service of the notice of
appeal was 25 October 2024, which they had failed to do
. The appellant
was informed that the noting of the appeal was out of time and that “there
is no appeal pending.” The respondent also pointed out to the appellant
that she was uploading various documents onto Caselines, and that “should
your client proceed without addressing the requirements of the relevant
Rule, your client does so at her own peril.”
1 Rule 51(3) read with Rule 2(1) of the rules in terms of the Magistr ates’ Court Act, 44 of
1944
2 i.e two days before the appeal was noted
3
4 The appellant’s attorneys replied on 29 October 2024. They wrote, among
others, that “We request an indication whether you maintain you (sic)
stance that the Appeal was not properly noted in time in order for us to
proceed with an application for condonation, alternatively an order
confirming that the Appeal was launched timeously.” The attorneys further
stated that “We require an answer now at this stage so that this issue can
be addressed initially thereby alleviating any further and unnecessary costs
in the appeal process.”
5 The response to this letter is dated 31 October 2024. It concludes with the
following remark : “Kindly take notice that your office has to date not
served a Notice to Appeal and as such, there is no pending appeal.”
6 The appellant’s attorney (Mr Hamann) deposed to the affidavit in support
of the condonation application. He submits that although the Notice of
Appeal had been filed at the Magistrates Court outside of the prescribed
times periods, this non-compliance had no practical effect and could not
prejudice the respondent. That was because the respondent was provided
with the notice of appeal on 24 October 2024. He also explains that the
non-compliance with Rule 51 came about “…in relation to my confusion as
to the new practice directives, and was I (sic) under the impression that I
had to obtain an Appeal Case Number before serving the Notice of Appeal.”
7 The high water mark in explaining the delay in seeking condonation is the
following: “On my letter dated 29 October 2024 I received no clear
indication that the Respondent will take issue with the technicalities, and as
such I did not regard it as necessary to proceed with an application for
4
condonation immediately as I gathered the position that the Respondent
did obtain knowledge of the Notice of Appeal on 24 October 2024 and as
highlighted in my letter dated 29 October 2024.” He then states, “It was
only on 9 April 2025 when the application to strike the appeal was
launched that I realised that the Respondent persisted with the allegation
that they did not receive notice of the appeal timeously.”
8 In so far as the record is concerned, Mr Hamann essentially averred that he
acted on the advice of an appeal clerk at the High Court in preparing the
record. He also contended that the respondent failed to assist in preparing
the record for use in the appeal.
9 The respondent, in its answer to the condonation application, pointed out
that the appellant had always been represented by an attorney and counsel
and that it was reasonable to expect them to familiarise themselves with
the rules and processes applicable to the noting and prosecution of an
appeal. It was contended on behalf of the resp ondent that the appellant’s
acceptance that she was notified that the noting of the appeal was out of
time was fatal to the condonation application. That was because nothing
was done to ensure that the appeal was properly noted, and that the
request for condonation was a reactive measure to the striking-off
application.
10 The respondent pointed out that the appellant, in her letter of 29 October
2024, expressly stated that she would lodge a formal application for
condonation if the respondent persisted with the view that there was no
pending appeal. The respondent communicated its persistence in the letter
5
of 31 October 2024. The application for condonation was only filed almost
6 months later “when the shoe started to pinch.” There is no true reason for
this delay and the inordinate delay in the launching of the application for
condonation is not explained by the appellant.
11 The respondent took issue with the appellant’s explanation for the state of
the appeal record, and that the appellant did not prosecute the appeal in
accordance with the Uniform Rules of Court. In its letter to the appellant
dated 27 November 2024, the respondent pointing out in summary how
the appeal record was to be made up. But its advice was not heeded.
Instead, t he appellant’s attorne ys in their reply, stat ed that they acted on
the advice of the registrar of appeals. The respondent took issue with this,
pointing out that the registrar of appeals does not assist parties in ensuring
the
substance and compliance of a record of appeal.
12 The respondent ’s letter to the appellant’s attorneys on 5 December 2024
further remarks on the shortcomings with the record and, once again on 13
December 2024, repeated the requirements for a compliant appeal record.
The respondent pointed out in this correspondence that the respondent
was prejudiced should the appellant persist in prosecuting the appeal on a
defective record. The respondent mentioned that it would seek dismissal of
the appeal, alternatively, an appropriate cost order. The appellant did not
reply to the letter of 13 December 2024.
13 The respondent wrote yet another letter, on 7 January 2025, repeating its
views on defects in the record of appeal. It suggested that non-compliant
documents be removed from Caselines and that a properly prepared appeal
6
record be served and filed. The appellant was given the opportunity to
make corrections by 14 January 2025. Unfortunately, the appellant did not
take-up the invitation . Instead, she proceeded to randomly file irrelevant
documents on Caselines. The respondent argues that the appeal record,
remains defective.
14 The appellant did not file a reply to address issues raised by the respondent
in its answering affidavit.
15 The appellant contended that she would be prejudiced if condonation is
refused. The respondent denied that the issue of prejudice arises because
the appellant was the maker of her own misfortune in that there was
negligent disregard and carelessness by her legal representatives, who
failed to establish the correct position and to apply the requisite provisions
of the Rules of Court and of the Practice Manual. The respondent also
contended that the failure to note the appeal, contrary to the stance by the
appellant, was not a mere technicality.
16 The appellant contends in the condonation applicati on that she “… has
excellent merits in the appeal and does a (sic) strong prospect of success
exist […].”
17 The appeal arises in the following circumstances. The parties concluded
two agreements: the first is a rental agreement in which the appellant had
the use of a copier machine belonging to the respondent; the second
agreement concerned the cost of copies from the use of the rental machine.
7
18 The appellant sold her business to Mr Phillip Bester during April 2016. The
appellant never notified the respondent of the change of ownership. It was
common cause that the respondent was unaware of the sale and continued
dealing with the appellant as if the appellant was still running the business.
19 The respondent claimed that the appellant defaulted on her obligations
under the two agreements. The respondent claimed R2,418.03 under the
rental agreement and claimed R95,196.98 under the cost per copy
agreement. The appellant denied liability. She raised several defences, and
those pursued at trial were that (i) she sold the school to Mr Bester, who
kept the copier machine identified in the agreements and continued to use
the machine; (ii) that the invoices for the cost per copy agreement
referenced a machine that was not contracted for in the original agreement
she had signed; and (iii) she
was liable only for equipment contracted for
by the parties.
20 The Magistrate found the appellant liable both for the rental and for the
cost per copy claims. The appellant was ordered to pay costs. That is the
order that is the subject of the current proceedings.
21 It was submitted on behalf of the appellant, in relation to the prospects of
success, that the record spoke for itself. It was also submitted that the
appellant had not breached the agreement because the respondent failed to
prove that the invoiced amounts were in respect of the machine reflected in
the actual agreements. Counsel for the appellant submitted that an affidavit
on behalf of the respondent, in rescission proceedings between the parties,
recorded that the machine on the premises was not the machine specified
8
in the agreement, with the result that the respondent failed to establish that
the appellant had breached the agreement.
22 It was submitted for the respondent that the import of clause 3.2 of the
agreement on the cost of copies was that it was sufficient for the
respondent to show that the appellant was in possession of a machine and
had the use of the machine, which then rendered the appellant liable to the
respondent. Counsel for the appellant did not address the import of clause
3.2 of the agreement in his reply.
Analysis
23 A request for condonation is considered as follows:
This court has held that the standard for considering an
application for condonation is the interests of justice.
Whether it is in the interests of justice to grant
condonation depends on the facts and circumstances of
each case. Factors that are relevant to this enquiry
include but are not limited to the nature of the relief
sought, the extent and cause of the delay, the effect of
the delay on the administration of justice and other
litigants, the reasonableness of the explanation for the
delay, the importance of the issue to be raised in the
intended appeal and the prospects of success.
3
3 Van Wyk v Unitas Hospital and Another 2008 (2) SA 472 (CC), para 20
9
24 The appellant has not, in my view, made a case for the Court to condone the
late noting of the appeal. The appellant also failed to put a proper appeal
record before this court.
25 Similarly, Mr Hamann’s explanations for the late noting of the appeal
cannot be upheld: first, he says the respondent was not clear whether it
persisted in saying no appeal had been noted; second, he says that he
laboured under the misapprehension that he first had to obtain an appeal
case number from the High Court before noting the appeal.
26 But the appellant attorney was told on 31 October 2024 that the
respondent maintained its view that the appellant had not noted an appeal.
Yet, the appellant waited until the eve of the hearing before seeking
condonation for her late noting of the appeal.
27 The explanation that the appellant’s attorney was “confused” as to the
appeal procedure is equally unsound. The appellant’s attorney did not
point to a provision in a practice directive that a litigant must first obtain
an appeal case number from the High Court before noting an appeal in the
Magistrates’ Court. There is also no indication that Mr Hamann was
unfamiliar with Magistrate’s Court Rule 2(1) and 51(3), and thus there is no
proper explanation for his failure to comply with (at least) these rules.
28 The appellant’s attorneys, in any event, al ready had an appeal case number
when they wrote their letter of 29 October 2025. The appellant should, on
this view, have noted an appeal because the appellant had obtained an
appeal case number by 24 October 2024. Even were this mistaken view to
10
have been accepted, by then the date for noting an appeal had lapsed. I find
that the stated confusion and the need for the prior obtaining of an appeal
case number is a rationalization after the fact. The explanation is
unreasonable.4
29 The appellant’s attorneys struck the Court as having taken a view that rules
governing the noting of an appeal were a mere formality. This is illustrated
by the remark that the filing in the Magistrates’ Court, although prescribed,
had no practical effect in relation to the respondent. But the noting of an
appeal in the Magistrates’ Court is not a mere formality - it is a
jurisdictional requirement for prosecuting an appeal before the High Court.
This stance is all the more puzzling and problematic because the appellant
was represented by attorneys and counsel throughout all the proceedings .
It is incumbent upon all legal practitioners to properly acquaint themselves
with the rules of court, regardless of the particular court.
30 But as has been stated supra, the delay in seeking condonation is
inexcusable. ‘An applicant for condonation must give a full explanation for
the delay. In addition, the explanation must cover the entire period of delay.
And, what is more, the explanation given must be reasonable.’
5 There is no
credible justification for the appellant have waited for six months – and this
after having been warned on more than one occasion that the appeal had
lapsed –
to bring the application for condonation.
4 van Wyk, para 22
5 van Wyk, para 22
11
31 The appellant says she “…has excellent merits in the appeal and does a ( sic)
strong prospect of success exist.” The existence of prospects of success is an
important factor in favour of granting condonation. 6 A litigant may not
simply assert that he has excellent merits. A court needs to examine the
bases for the assertion. An applicant is required to make out a case in the
founding affidavit, detailing the bases for why the applicant says he has
“excellent merits in the appeal.” In this appeal, the averment on the merits
and prospects of success is an unsubstantiated declaration.
32 I consider this application an instance where there is no need for the Court
to consider the prospects of success. This is because of the inordinate delay
in seeking condonation, together with the absence of a sound explanation
for the delay.
7 Even if the merits were considered, the appellant had no
answer to the case made for the respondent regarding the import of clause
3.2 of the agreement underpinning the respondent’s claim.
33 The overriding consideration in an application for condonation is the
interests of justice. 8 The appellant cannot escape the consequences of the
neglect by her attorneys. 9 The attorneys were aware of the need to seek
condonation by 31 October 2024. They only sought condonation on 11
April 2025. The attorneys were, in addition, repeatedly informed of defects
in the appeal record. The record remained defective when the matter came
6 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC),
para 3
7 Grootboom v National Prosecuting Authority and Another (2014) 35 ILJ 121 (CC), para
51
8 Grootboom, para 22
9 Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A)
at 141C - E
before Court on 5 August 2025. Compliance with the rules of court is
fundamental to the proper administration of justice. The courts have
repeatedly cautioned of the need for such compliance.10
34 I make the following order:
(1) Condonation is refused.
(2) The appeal is struck from the roll.
(3) The appellant is ordered to pay costs, being costs in the striking off
application, condonation application, and the costs of proceedings on
6 May 2025.
( 4) The appellant is further ordered to pay costs of counsel, on Scale B.
I agree:
MOOKI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
NEUKIRCHERJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
10 Van Wyk, para 33; Ethekwini Municipality v Ingonyama Trust 2014(3) SA 240 (CC),
para 26 -27
12
13
Appearance:
On behalf of the Appellant: E J van Rensburg
Instructed by: Hamann & Botha Attorneys
On behalf of the Respondent: D Hewitt
Instructed by: Wiese and Wiese Attorneys
Date of Hearing: 5 August 2025
Date of Judgement:
15 August 2025