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[1993] ZASCA 190
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Blumenthal and Another v Thomson NO and Another (462/92) [1993] ZASCA 190; 1994 (2) SA 118 (AD); [1994] 2 All SA 138 (A) (30 November 1993)
Case No: 462/92
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
JULIUS BLUMENTHAL
1st Appellant
HYMIE MEDALIE
2nd
Appellant
and
MIRIAM THOMSON N O
1st Respondent
MASTER OF THE SUPREME
COURT
2nd Respondent
Coram
: JOUBERT, NESTADT, EKSTEEN J J A et HOWIE,
KRIEGLER A J J A.
Date of hearing
: 5 November 1993
Date of filing reasons
: 30 November 1993
2
REASONS FOR JUDGMENT
JOUBERT
J A :
On 5 November 1993 this Court granted and order (a)
dismissing with costs an application by the appellants for condonation of (1)
the late filing of the notice of appeal with the Registrar of this Court, and
the failure to serve it timeously on the 1st respondent,
(2) the late filing of
the necessary power of attorney, (3) the late furnishing of security for costs
and (4) the late filing of
the record. The Court also ordered (b) the 1st
respondent's costs of appeal to be paid by the 1st and 2nd appellants. In both
instances
(a) and (b) the costs were ordered to include the costs of two
counsel. (I may add in parenthesis that the 3rd and 4th appellants
were not
parties
3
to the application for condonation, since they have reached a
settlement with the 1st respondent in consequence of which they are
no longer
parties to the appeal against the judgment of the Court a
quo
). This
Court also intimated that its reasons for granting the orders would be filed
later. The reasons now follow.
At the outset I feel constrained to record my
utter disapproval of the unwieldy nature of the entire collection of separate
documents
which comprise the application. They have not been bound collectively
in a separate cover. Nor have they as a single body been paginated
consecutively
with an index. To find one's way about them is a frustrating, annoying and
time-consuming experience like entering
an intricate labyrinth without an
experienced guide.
In the Transvaal Provincial Division SCHABORT J on 4 May 1990 dismissed the
plaintiffs' action with costs. On 5 September 1990 the
Court
a quo
granted
4
all the plaintiffs leave to appeal to this Court.
The
appellants now petition this Court for an order condoning :
1. the late filing of the notice of appeal with the Registrar of this Court and
the failure to serve one on the 2nd
respondent,
2.
the
failure to file the necessary power of attorney,
3.
the late filing of the record, and
4.
the late furnishing of security for
costs.
The 1st respondent opposed the grant of the
relief claimed on the following grounds :
1. the gross acts or failures by the 1st and 2nd appellants as well as their
attorneys to prosecute the appeal as required by the
Rules of this Court,
2. their failure to prosecute the appeal properly delayed and prejudiced the
timeous liquidation and distribution of the estate of
the late Abram Thomson who
died on 30 September 1984, and
5
3. the absence of reasonable prospects of success on appeal.
Let
us examine the nature of non-compliance with the Rules of this Court in the
instant matter.
1. Appellate Division Rule 5(1)(a) requires a notice of
appeal to be filed
with the Registrar of this Court
within 20 days after an order for leave to
appeal has
been granted i.e. within 20 days after 5 September 1990
in this
matter. On 25 September 1990 a notice of
appeal was served by the appellants'
attorney on the
Registrar of the Transvaal Provincial Division and on
the
attorneys of the 1st respondent but not on either
the Registrar of this Court
or the 2nd respondent.
The Rule was eventually only complied with on 10 July 1992, as regards 2nd
respondent and on 28 July 1992 in so far as the Registrar
of this Court is
concerned.
2. In terms of Appellate Division Rule 5(3)(b) a power of
attorney
authorising an appellant's attorney to
6
prosecute the appeal must be lodged with the Registrar of this Court within 20
days after the notice of appeal has been lodged. In
fact this only took place on
14 May 1992.
3. According to Appellate Division Rule 5(4)(c) and (d) an appellant must lodge
with the Registrar of this Court copies of the record
of the proceedings within
3 months of the date of the judgment or order appealed against, or an order
granting leave to appeal, or
within an extended period agreed to by the
respondent. In the present matter the record should therefore have been lodged
within
3 months after 5 September 1990, i.e. by not later than 4 December 1990.
It was lodged on 15 June 1992, some 18 months after leave
to appeal was granted
on 5 September 1990.
4. Appellate Division Rule 6(2) provides that before lodging of the record with
the Registrar of this Court security for the respondent's
costs must be lodged
by
7
the appellant. The security for the costs of the 1st respondent was furnished on
15 April 1992.
Factors which usually weigh with this Court in
considering applications for condonation have been summarised in
Federated
Employers Fire & General Insurance Co Ltd and Another v McKenzie
1969(3)
S A 360 (A) at p 362 G to "include the degree of non-compliance, the explanation
therefor, the importance of the case, the
prospects of success, the respondent's
interest in the finality of his judgment, the convenience of the Court and the
avoidance of
unnecessary delay in the administration of justice - - -"
The prosecution of the appeal was initially in the hands of the attorney who
represented the appellants at the trial. He, a certain
Mr F P N Hennop,
continued to act until 16 September 1991 when the appellants terminated his
mandate. During this period he seriously
neglected his duties; indeed there is
no dispute that his breaches of the Rules were flagrant and gross. On 5 October
1990 the
8
attorneys of the 1st respondent alerted him to the fact that
the notice of appeal had not been filed with the Registrar of this Court.
He was
also informed that it could no longer be filed without applying for condonation.
Since his attention had been directed to
his non-compliance with a Rule of this
Court it was his duty to have applied without delay for condonation.
Ferreira
v Ntshingila
1990(4) SA 271 (A) at p 281 D - E and the authorities referred
to. This warning, however, failed to arouse Hennop from his state
of inactivity
to properly prosecute the appeal or to apply for condonation. All he did was to
advise the appellants that an application
would be made and that its grant would
be automatic. In a letter, dated 16 April 1991, the attorneys of the 1st
respondent pointed
out to Hennop that his failure to prosecute the appeal had
caused it to lapse in terms of Appellate Division Rule 5 (4A)(b) and to
be
deemed to have been withdrawn (because the record had not been lodged within the
prescribed period). Formal
9
demand was also made for payment of the 1st respondent's taxed
costs of this trial. This letter likewise failed to stir Hennop into
activity.
In McKenzie's case (
supra
) at p 362 - 363 it was pointed out that "the
late filing of the record in a civil case more closely concerns the respondent,
who
is allowed to extend the time under Rule 5(4)(c) [now (d)]. The late filing
of a notice of appeal particularly affects the respondent's
interest in the
finality of his judgment - the time for noting an appeal having elapsed, he is
prima facie
entitled to adjust his affairs on the footing that his
judgment is safe - - -"
Hennop gives no satisfactory explanation for his failure to observe the
Rules. In his affidavit, dated 20 December 1990, he disclosed
that he conducted
a one-man practice which related mainly to conveyancing and administration of
deceased estates. He candidly confessed
his ignorance in regard to Rules of this
Court concerning the prosecution of an appeal. It was of course his duty to
10
acquaint himself with the relevant Rules of this Court. See
Moaki v Reckitt and Colman (Africa) Ltd and Another
, 1968(3) S A 98 (A)
at p 101 G - H,
Kqobane and Another v Minister of Justice and Another
,
1969(3) 365 (A) at p 369
in fine
- 370 A,
Mbutuma v Xhosa Development
Corporation Ltd
, 1978(1) S A 681 (A) at p 685 A. He claimed to have enlisted
on 1 October 1990 the services of attorneys Niemann & De Swart of
Pretoria
to assist him in the prosecution of the appeal. What assistance, if any, they
then gave does not appear from the papers.
In any event such a step, did not
release him from his duties and responsibilities as an attorney of the
appellants. Moreover, his
neglect to observe the Rules of this Court persisted
even after he had become aware of the fact that he did not know them.
In September 1991 a certain T G Fine took over as appellants' attorney. He
too was remiss in the prosecution of the appeal. There
was a delay of about ten
months before the application for condonation was brought.
11
And, as indicated, many months went by before the other
breaches were remedied. Here too there is no satisfactory explanation by the
attorney. It may be that Fine had not been provided with the necessary funds.
However he does not say so.
Even the appellants themselves are not free from
blame. Early on they were made aware of Hennop's non-prosecution of the appeal.
This
happened in consequence of the first respondent's writ of execution for the
payment of her taxed costs of trial which was served
on the second appellant on
18 May 1991. The deputy sheriff of Benoni produced a
nulla bona
return.
Only on 6 September 1991 did the first appellant remind Hennop of having
neglected his professional duties as an attorney
and call on him to proceed
forthwith with the application for condonation.
But to return to the neglect of Hennop and Fine. On this basis alone the
application for condonation was bound to fail. This Court
has often said that in
cases
12
of flagrant breaches of the rules, especially where there is
no acceptable explanation therefor, the indulgence of condonation may
be refused
whatever the merits of the appeal are; this applies even where the blame lies
solely with the attorney (
Tshivhase Royal Council and Another v Tshivhase and
Another
1992(4) SA 852 (A) at 859 E - F). As I have said, the facts
in
casu
show that the rules were flagrantly breached; nor is there any
acceptable explanation for such breaches. In these circumstances it
is
unnecessary to make an assessment of the prospects of success since the
cumulative effect of the factors already mentioned including
the first
respondent's interest in the finality of the Court
a quo
's judgment is
such as to render the application for condonation unworthy of consideration (see
too
Rennie v Kamby Farms (Pty) Ltd
1989(2) S A 124 (A) at 131 I - J and
Ferreira
's case (
supra
) at 281 J - 282 A).
13
For these reasons the appellants' petition for condonation was
dismissed in terms of the orders granted on 5 November 1993.
C P JOUBERT J A.
NESTADT J A
EKSTEEN J A Concur.
HOWIE A J A
KRIEGLER A J A