IN THE HIGH COURT OF SOUTH AFRICA
(NORTH WEST DIVISION, MAHIKENG)
Not reportable
CASE NO: CIV APP MG 06/2022
Court a quo Case No: 3112/2020
In the matter between:
KHANYISA MOGALE ATTORNEYS Applicant / Appellant
and
MANKELE ZIPPORAH MOKOTEDI
obo BRIAN RIDGE MOAGI Respondent
Coram: Petersen ADJP; Maodi AJ
Date heard: 08 August 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand ing down the
judgment are deemed to be 12h00 on 12 February 2026.
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Summary: Application for reinstatement of lapsed appeal – condonation for late
filing of record – explanation for 12 -month delay deemed vague and
unsatisfactory – negligence by appellant attorneys in prosecuting appeal – strict
scrutiny of legal practitioners’ conduct – application of trite principles weighing
poor explanation against prospects of success – strong prospects of success on
appeal identified – court a quo irregularly admitted replying affidavit in summary
judgment proceedings contrary to Magistrates’ Court Rule 14 – procedural
irregularity constitutes potential gross injustice – interests of justice favo ur
ventilation of dispute despite “slapdash” prosecution of the appeal – strong merits
compensate for weak explanation – appeal reinstated – appellant ordered to pay
costs of application and opposition due to dilatory conduct.
ORDER
On appeal from (Rustenburg Magistrates’ Court): (Magistrate P J Smith sitting
as court a quo):
1. Cond
onation for the late filing of the record and the late prosecution of the
appeal is granted.
2. The appeal under Case No. CIV APP MG 06/2022 is hereby reinstated.
3. The Appellant is directed to take all necessary steps to set the appeal down
for hearing within 30 days of this order.
4. The Appellant is ordered to pay the costs of this application for
reinstatement and condonation, including the costs of the Respondent’s
opposition on Scale C, to be taxed.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP
Introduction
[1] This is an application for the reinstatement of an appeal that has lapsed due
to the failure of the appellant ( applicant in this interlocutory application) to
prosecute the appeal within the prescribed time limits. Accompanying this request
is an application for condonation for the late filing of the record and the late filing
of the application for reinstatement itself.
[2] The appellant, a firm of attorneys, seeks to overturn a summary judgment
granted against it by the Rustenburg Magistrate’s Court on 0 7 July 2021. The
appeal is founded on alleged procedural irregularities committed by the court a
quo, most notably the admission of a replying affidavit during summary judgment
proceedings.
[3] The respondent, acting on behalf of her minor child, opposes the application
for reinstatement. The respondent contends that the a ppellant has displayed a
flagrant disregard for the Rules of Court, that the explanation for the delay is
woefully inadequate, and that the application is merely a dilatory tactic to delay
payment.
[4] The matter before this Court, therefore, concerns the classic tension between
the need for finality in litigation and the interests of justice , which dictate that a
party should not be barred from ventilating a genuine dispute due to procedural
missteps, provided a reasonable explanation exists.
[5] In adjudicating this application, this Court is required to exercise a judicial
discretion, weighing various factors including the degree of non-compliance, the
explanation therefor, the prospects of success on appeal, the importance of the
case, and the prejudice to the respective parties.
Factual background
[6] The genesis of this dispute lies in the Magistrate’s Court for the District of
Rustenburg under case number 3112/2020. The respondent instituted action
against the appellant, which culminated in an application for summary judgment.
[7] The summary judgment application was argued, and judgment was delivered
in favour of the respondent on 07 July 2021. The appellant, dissatisfied with this
outcome, noted an appeal against the whole of the judgment shortly thereafter.
[8] In terms of Rule 50(1) of the Uniform Rules of Court, read with Rule 51 of
the Magistrates’ Court Rules, the appellant was required to prosecute the appeal
by filing the record and applying for a date of hearing within strictly prescribed
timeframes, sixty ( 60) days after noting the appeal or the certification of the
record.
[9] It is common cause that the appellant failed to adhere to these timeframes.
The record was not filed timeously, and no application for a hearing date was
made within the prescri bed period. Consequently, the appeal lapsed ex lege (by
operation of law).
[10] The appellant remained supine for a considerable period. It was only in July
2022, approximately one year after the judgment a quo was delivered, that the
appellant launched the current application to revive the appeal.
The explanation for the delay
[11] The appellant bears the onus to satisfy this Court that sufficient cause exists
to condone the non-compliance. This requirement is not a mere formality. The
explanation proffered must be reasonable, bona fide, and cover the entire period
of the delay.
[12] In the founding affidavit filed in support of reinstatement, the a ppellant
attributes the delay to a confluence of administrative challenges and external
factors. The primary reason advanced is the difficulty experienced in obtaining
the transcribed record from the service providers and the Clerk of the Court.
[13] The appellant further submits that the restrictions imposed by the COVID -
19 pandemic, which persisted during the relevant period, hampered the normal
flow of court administration and the reconstruction of the record.
[14] Reference is made to various attempts to communicate with the transcribers
and the court a quo to secure the complete record. The appellant contends that the
file went missing at the Magistrate’s Court at one stage, necessitating a
reconstruction process which consumed significant time.
[15] The appellant argues that the delay was not wilful or intended to frustrate the
respondent, but rather the result of systemic inefficiencies beyond its control.
Applicable legal principles
[16] The principles governing condonation are well-entrenched in our law. In
Melane v Santam Insurance Co Ltd
1the Appellate Division held that “sufficient
cause” includes the assessment of the degree of lateness, the explanation for it,
the prospects of success, and the importance of the case.
[17] However, more recent jurisprudence has refined the application of these
principles, particularly regarding the standard of conduct expected from litigants
and their legal representatives.
[18] We must have specific regard in Harry's Tyres (Pty) Limited v Symes and
Others
2, where the Full Court of this Division emphasized that the factors
relevant to condonation are not individually decisive but must be weighed against
one another.
[19] Harry's Tyres establishes that even if the explanation for the delay is weak,
strong prospects of success may compensate for it. Conversely, where the delay
is egregious and the explanation unsatisfactory, even good prospects of success
may not be sufficient to save the application. The paramount consideration
remains the interests of justice.
1 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
2 Harrys Tyres (Pty) Limited v Symes and Others (CIV APP FB10/2023) [2024] ZANWHC 75 (13
March 2024).
[20] Furthermore, the quality of the explanation must be scrutinized strictly. In
Ngaka Modiri Molema District Municipality v Quantibuild (Proprietary)
Limited3the Full Court of this Division articulated the standard as follows:
‘A party seeking condonation must give a full explanation for the non- compliance with the
rules of court. The explanation must be reasonable and must cover the entire period of the
delay.’
[21] The dictum in Quantibuild places a heavy burden on the applicant to account
for every significant gap in the timeline. A fragmented or sketchy explanation that
leaves months unaccounted for is insufficient.
[22] Finally, in Member of the Executive Council , North West Department of
Health v L.S.M obo O.M
4 the Full Court of this Division encapsulated all the
aforesaid principles, relevant to the conduct of legal practitioners, with reference
to recent authorities of the SCA and the aforesaid authorities. It stated, amongst
others:
‘[8] The approach to an application for condonation accompanied by an application for
reinstatement of an appeal, in the context of Uniform Rule 49, was reaffirmed by the Supreme
Court of Appeal (SCA) in MEC for Health Eastern Cape v A.S obo S.S 5. The SCA made the
point, which is equally apposite in the present matter, that ‘ Medical negligence claims linked
to cerebral palsy in newborns are increasingly prolific in our courts. They often involve
3 Ngaka Modiri Molema District Municipality v Quantibuild (Proprietary) Limited (CIV APP
FB12/2022; 3352/2019) [2024] ZANWHC 101 (12 April 2024).
4 Member of the Executive Council North West Department of Health v L.S.M obo O.M (Appeal)
(FC06/2024 ; 1362/2019) [2025] ZANWHC 203 (16 October 2025).
5 MEC for Health Eastern Cape v A.S obo S.S (842/2023) [2025] ZASCA (15 January 2025).
complex questions around negligence and, in particular, causation. The present case is no
exception.’
[9] As in MEC for Health Eastern Cape v A.S obo S.S, the issue that complicates the present
matter is the multiple failings on the part of the attorneys for the MEC to comply with the
relevant Uniform Rules of Court (the rules) regulating appeals from the trial court to the full
court. It is incumbent on this Court to carefully consider these failings and whether or not they
can be condoned.
[10] The SCA underscored that ‘ the two aspects of the appeal are linked. Condonation of a
failure to comply with the rules almost inevitably involves weighing the prospects of success
on the merits of the appeal as a key factor’. We are reminded that, as in the present case where
the condonation is opposed, this Court must give proper consideration to the question of
whether the defaulting party has made out a case for that relief.’
[11] On the contrary argument, also postulated by the SCA, it is trite that prospects of success
are by no means a decisive factor. Our law is replete with authority that , in the case of gross
negligence, even strong prospects of success will not justify condonation. The question of
prospects of success ordinarily warrants a consideration of the merits of the matter, and more
so, the reasons advanced by the appellant why the prospects of success should sway the
pendulum in favour of the MEC. This , however, is not a hard -and-fast rule.
In The Member of the Executive Council for Health, Eastern Cape Province v Y N obo E
N, with reference to Melane v Santam Insurance Co Ltd
6; and Commissioner: South African
Revenue Service, Gauteng West v Levue Investments (Pty) Ltd7, the SCA pointed out that:
‘[14] Although the prospects of success on appeal are generally an important consideration in
relation to the reinstatement of an appeal, it is not decisive. Where the degree of non-
compliance is flagrant and substantial, condonation may be refused irrespective of the
compliance is flagrant and substantial, condonation may be refused irrespective of the
prospects of success. If the explanation for such flagrant and substantial non- compliance is
manifestly inadequate or there is no explanation at all, the prospects of success need not be
considered.
6 Member of the Executive Council for Health, Eastern Cape v Y N obo E N (056/2021) [2023]
ZASCA 32 (30 March 2023).
7 Commissioner: South African Revenue Service, Gauteng West v Levue Investments (Pty) Ltd [2007] 3 All SA
109 (SCA) para 11.
[12] The seminal decision in Ferreira v Ntshingila 8 regarding attorneys being fully
acquainted with the rules of the appeal court, has found expression in many SCA
judgments since. In S v Sayed and others
9 with reference to Ferreira v Ntshingila at 281F–
G, the SCA reiterated that: ‘An attorney instructed to note an appeal is required to
acquaint himself with the rules of the court in which the appeal is to be prosecuted… ’
(emphasis added).
[23] This Court, guided by Member of the Executive Council for Health, Eastern
Cape v Y N obo E N , where the SCA deprecated the “ slapdash” approach to
litigation often adopted by attorneys, cannot overlook the conduct of the appellant
in casu.
[24] In MEC for Health v Y N , the SCA warned that where there is gross
negligence or a flagrant disregard for the rules, the Court is entitled to refuse
condonation to protect the integrity of the judicial process, irrespective of the
merits. This is particularly relevant in casu, where the appellant is itself a firm of
attorneys.
Evaluation of the delay
[25] Applying the MEC for Health v Y N standard to the facts at hand, the
appellant’s explanation leaves much to be desired. The approximately 12 (twelve)
month delay is substantial and inordinate.
8 Ferreira v Ntshingila 1990 (4) SA 271 (A) ([1989] ZASCA 149) at 281F – G.
9 S v Sayed and others 2018 (1) SACR 185 (SCA) at para 19.
[26] While this Court takes judicial notice of the disruptions caused by the
COVID-19 pandemic, a general reliance on “ pandemic restrictions” without
specific dates and details regarding how those restrictions prevented compliance
during specific weeks or months is inadequate.
[27] The explanation regarding the missing file and the transcription delays is
similarly vague in parts. There are significant periods of inactivity during which
the appellant appears to have sat back and waited for developments rather than
proactively driving the process.
[28] As a firm of attorneys, the appellant is expected to know the Rules of Court
intimately. The failure to apply for an extension of time or to bring the application
for reinstatement sooner points to a degree of negligence. In Member of the
Executive Council North West Department of Health v L.S.M obo O.M , the Full
Court of this Division emphasized what was said by the SCA in
The Member of the Executive Council for Health, Eastern Cape Province v Y N
obo E N, that:
‘[54] The circumstances prevailing in the present matter are on all fours analogous to those
in The Member of the Executive Council for Health, Eastern Cape Province v Y N obo E N .
The sentiments expressed at paragraphs 15 and 16 are apposite:
‘[15] The effect of the delay in the filing of the record upon the administration of justice and
upon the interests of the respondent is self -evident. At issue in this case is liability for harm
caused to a child, who is permanently disabled, and whose int erests are paramount. [19] She
was born on 1 January 2010. Liability was determined by the trial court on 30 October 2018
and confirmed on appeal on 23 July 2020. The interests of the respondent and the minor child
cannot be ignored.
The quantum of the loss suffered by them has yet to be determined, and they have not yet
received compensation in accordance with the loss.
---
[16] … Finally, it must be said that the way in which the State Attorney, Mthatha , dealt with
this matter is to be strongly deprecated. There was a flagrant disregard of the SCA rules. This
Court, on more than one occasion, has stated that in such cases, punitive personal costs orders
may be appropriate.’
[29] If this Court were to decide the matter solely based on the explanation for
the delay, the application would likely fail. The explanation does not fully meet
the “full and satisfactory” threshold espoused in Quantibuild.
Prospects of Success
[30] As established by the Supreme Court of Appeal in MEC for Health Eastern
Cape v A.S obo S.S, condonation for a failure to comply with court rules almost
inevitably involves weighing the prospects of success on the merits as a key factor
against the poor explanation for the delay . This Court is acutely aware that
evaluating these two linked aspects requires careful balancing.
[31] In conducting this balancing act, we must be guided by the stern cautions set
out in Member of the Executive Council for Health, Eastern Cape v Y N obo E N.
The SCA was clear that the prospects of success are not always decisive. Where
a litigant’s non-compliance is flagrant and substantial, a court retains the
discretion to refuse condonation irrespective of how strong the prospects of
success might be. Given the appellant ’s standing as a firm of attorneys, their
failure to adhere to the prescribed timeframes and their vague explanation skirt
dangerously close to this threshold of flagrant non-compliance.
[32] However, despite the “slapdash” prosecution of this appeal by the appellant,
this Court cannot disregard the compelling merits of the case. The appellant’s
central grievance is that the court a quo irregularly admitted a replying affidavit
during the summary judgment proceedings.
[33] The admission of a replying affidavit in summary judgment proceedings is
strictly contrary to Magistrates’ Court Rule 14. Rule 14, which governs summary
judgment, permits only two sets of affidavits : the plaintiff’s verifying affidavit
and the defendant’s opposing affidavit. The Rule does not make provision for a
replying affidavit. The filing of a replying affidavit in summary judgment
proceedings is widely regarded as an irregular step. If the Magistrate relied on the
new matter or evidence raised in this impermissible affidavit to grant summary
judgment, it constitutes a material misdirection. The appellant, in fact, contends
that the summary judgment was granted largely on the strength of this irre gular
replying affidavit, which effectively closed the door of the appellant’s defence
without a trial. This is not a mere technical oversight . It constitutes a potential
gross injustice.
[34] On the papers before us, this ground of appeal appears to have strong
prospects of success on appeal. Summary judgment is a drastic remedy that closes
the court’s doors to a defendant. Strict compliance with Rule 14 is therefore
required, to avoid the tenets of s 34 of the Constitution of the Republic of South
Africa, 1996 being impinged.
[35] Refusing reinstatement would allow a potentially legally defective judgment
to stand. It would impose liability on the appellant without affording the appellant
a fair opportunity to defend the matter at trial, solely because of procedural
noncompliance in the appeal process.
[36] Conversely, the respondent is prejudiced by the delay in finalising the matter
and obtaining the judgment debt. However, prejudice to the respondent can, to a
large extent, be cured by an appropriate costs order.
[37] While the appellant’s conduct borders on the “slapdash” behaviour criticised
in MEC for Health v Y N, we are not persuaded that it reaches the level of gross
negligence that warrants closing the door on a meritorious appeal entirely.
[38] The constitutional right of access to courts and the right to a fair hearing
weigh heavily in favo ur of granting the indulgence, despite the appellant’s
dilatory conduct.
[39] Ultimately, these strong merits outweigh the weak explanation for the twelve
(12) month delay. Taking all these factors into consideration and heavily
influenced by the principles distilled in Member of the Executive Council, North
West Department of Health v L.S.M obo O.M regarding the ultimate interests of
justice, this Court finds that the interests of justice strongly favour the ventilation
of this dispute. To shut the courtroom doors on the appellant when a clear
procedural irregularity occurred a quo would compound the injustice.
Consequently, the appeal must be reinstated.
Costs
[40] The granting of condonation and reinstatement is an indulgence. The
appellant is asking the Court to excuse its non-compliance.
[41] The respondent was fully entitled to oppose this application, given the length
of the delay and the gaps in the appellant’s explanation. The opposition was not
unreasonable.
[42] In light of the principles in MEC for Health v Y N , the Court must mark its
displeasure at the appellant’s lax prosecution of the appeal. The appellant should
not be allowed to escape the financial consequences of its delay.
[43] Accordingly, it is only fair and proper that the appellant be ordered to pay
the costs of this application, including the costs incurred by the respondent’s
opposition.
[44] The respondent prayed for a punitive costs order. While the appellant’s
conduct was negligent, we are of the view that it was not malicious or vexatious
to the extent that it warrants attorney and client costs at this stage. Party and party
costs will suffice to address the prejudice on the highest scale.
Conclusion
[45] In summary, while the a ppellant’s explanation for the delay is weak and
subject to criticism under the authorities cited above, the strong prospects of
success regarding the irregularity of the replying affidavit compel this Court to
grant the relief sought in the interests of justice.
[46] The appeal is therefore re instated, but the appellant must pay for the delay
and the opposition thereto.
[47] Finally, the judgment in this appeal was assigned to Judge Maodi to scribe.
Upon receipt of correspondence from T T Hlapolosa Inc Attorneys , enquiring
about the delay in handing down the judgment, I took it up on myself to pen the
judgment in this appeal. The delay is regretted, particularly in light of the high
standard expected by our Courts from practitioners, as espoused in this judgment.
Order
[ 48] In the result, the following order is made:
1. Condonation for the late filing of the record and the late prosecution of the
appeal is granted.
2. The appeal under Case No. CIV APP MG 06/2022 is hereby reinstated.
3. The Appellant is directed to take all necessary steps to set the appeal down
for hearing within 30 days of this order.
4. The Appellant is ordered to pay the costs of this application for
reinstatement and condonation, including the costs of the Respondent 's
opposition, on Scale C, to be taxed.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree.
TJMAODI
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For the appellant: Mr T T Hlapolosa
Instructed by: T T Hlapolosa Attorneys Inc
c/o GA Mokaa Attorneys
Mahikeng
For the respondent: Adv R C Marakalla
Instructed by: Makgale Ngwasheng Attorneys
c/o Mothusi Marumo Attorneys
Mahikeng