Brief Summary

Appeal — Condonation for late filing — Appellant's failure to comply with procedural rules — Appellant, a cabinet maker, fell into arrears with rent and faced judgments for debt and ejectment; sheriff executed valid warrants, leading to the attachment of goods — Appellant's attorney filed multiple petitions for condonation of late notice of appeal, power of attorney, and security for costs, citing misunderstandings and office closures as reasons for delay — Court held that the explanations provided were insufficient and dismissed the petitions with costs, including de bonis propriis against the appellant's attorneys.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were applications in the Supreme Court of Appeal for condonation of multiple failures to comply with the Rules regulating the prosecution of an appeal, namely late filing of a notice of appeal, late filing of a power of attorney, and late furnishing of security for costs. The court was therefore concerned primarily with procedural compliance and the exercise of its discretion to condone non-compliance, rather than with the substantive merits of the underlying dispute.

The parties were Omar Darries (appellant) and the Sheriff of the Magistrates’ Court, Wynberg (first respondent) together with Glen Richard Kannemeyer (second respondent, a deputy sheriff). The appellant was represented throughout by his attorney, Mr R Charles of Papier Charles and Associates. The respondents opposed at least the third condonation application and sought an adverse costs order.

The procedural history relevant to this decision began with litigation in the Wynberg Magistrates’ Court arising from the execution of warrants against the appellant’s property and premises. After evidence had been led at trial, absolution from the instance was granted in favour of the respondents, with costs. Leave to appeal to the Supreme Court of Appeal was granted on 12 December 1995. Thereafter the appellant failed to prosecute the appeal in accordance with the Rules, leading to three separate petitions for condonation. On 17 March 1998 the Supreme Court of Appeal dismissed all condonation applications with costs, including a de bonis propriis costs order against the appellant’s attorneys in respect of the condonation applications. The reasons for that order were delivered on 25 March 1998.

The general subject-matter of the original dispute (in the court below) concerned an alleged delictual claim against the sheriff and deputy sheriff relating to the handling of the appellant’s goods during the execution of a warrant of execution and a warrant of ejectment. However, in this decision the court’s focus was the appellant’s procedural defaults and the adequacy and truthfulness of the explanations advanced in support of condonation.

2. Material Facts

It was common cause in the underlying matter that, pursuant to judgments granted against the appellant in the Wynberg Magistrates’ Court, the clerk of the court issued in August 1991 a warrant of execution for approximately R16 449,20 and a warrant of ejectment relating to premises described as Factory No 3, Protea Road, Phillipi. It was also common cause that these warrants were validly and properly issued. The deputy sheriff executed the warrants on 15 and 16 August 1991, found the premises locked and unattended, broke the lock to gain access, attached and removed certain items to storage, and placed other belongings outside the factory within the compound. The litigation in the court below concerned goods other than those attached; the appellant alleged that some of those goods were removed by unknown persons and that the sheriff unlawfully and intentionally, alternatively negligently, permitted that removal. At trial, absolution from the instance was granted in favour of the respondents.

For purposes of the condonation applications, the material facts were the repeated failures to comply with the Rules of the Supreme Court of Appeal and the explanations tendered for those failures. The appellant was obliged by Rule 5(1) to lodge a notice of appeal within 20 days of the order granting leave to appeal. The deadline, extended by public holidays, expired at the latest on 11 January 1996, but the notice of appeal was lodged on 22 January 1996 (about 11 days late). The petition for condonation for this lateness was filed on 30 January 1996.

Under Rule 5(3)(b), a power of attorney authorising the appellant’s attorney to prosecute the appeal had to be lodged within 20 days of lodging the notice of appeal. That period expired at the latest on 9 February 1996. The power of attorney was signed on 27 February 1996, and the condonation petition was filed on 6 March 1996. The exact date of lodging the power of attorney did not appear from the petition.

Under Rule 5(4) the record had to be lodged within three months of leave to appeal, subject to written agreement extending the period. The record bore the registrar’s date stamp of 6 May 1996, and the court accepted this as the lodgement date. It appeared from the court file that the record was not late because the parties had agreed to extend time, although the supporting affidavits did not mention this.

Under Rule 6(2) (read with Rule 5(4)), before lodging the record the appellant was required to provide good and sufficient security for the respondents’ costs of appeal. On the court’s acceptance of 6 May 1996 as the lodgement date, security had to be provided by at the latest 6 June 1996. Security was in fact lodged only on 27 August 1996, and the condonation petition for this delay was filed on 3 October 1996.

The court treated as materially significant that all three condonation petitions were supported by affidavits deposed to by the appellant’s attorney rather than by the appellant personally, that the affidavits adopted a standard form, and that no replying affidavit was filed to meet the respondents’ opposition in relation to the third petition.

The court also relied on correspondence annexed to the respondents’ opposing affidavit in the third condonation application. Of particular importance was a letter dated 2 May 1996 from the appellant’s attorneys to the registrar stating that “the appellant has entered into good and sufficient security for respondents’ costs of appeal” under Rule 6. This representation was treated as inconsistent with later correspondence and with the fact that security was only lodged in August 1996. The court found that relevant correspondence which undermined the attorney’s version was not annexed by him and that the explanation advanced in the third petition attempted to gloss over material facts.

Where the court distinguished between versions, it rejected the appellant attorney’s account as irreconcilable with the documentary record. The court accepted, on the respondents’ attorney’s affidavit and annexed correspondence, that the respondents’ attorneys required security of R20 000,00, that they had indicated the requirement and awaited instructions, and that they repeatedly demanded proper security without receiving it timeously.

3. Legal Issues

The central questions were whether the appellant had shown good cause for condonation of non-compliance with the Rules, including whether there was an acceptable, complete, and truthful explanation for each default and any associated delay in seeking condonation, and whether the cumulative conduct amounted to flagrant and gross non-observance rendering the applications unworthy of consideration.

A further question was how the court should treat the contention that the appellant should not suffer for his attorney’s failures, and whether the circumstances justified an adverse costs order against the attorney personally, namely an order that costs be paid de bonis propriis.

The dispute was predominantly concerned with the application of established legal principles governing condonation to the facts, including an evaluative assessment of the adequacy of explanations and the seriousness of the defaults, together with the exercise of the court’s discretion in managing compliance with its Rules. Although prospects of success on appeal can be relevant, the court had to decide whether it was necessary (or appropriate) to reach that consideration given the nature and extent of the procedural failures.

4. Court’s Reasoning

The court proceeded from established principles that condonation is not a mere formality and that the Rules of the Supreme Court of Appeal must be complied with. It reiterated that an applicant must provide an acceptable explanation not only for the initial non-compliance (such as lateness) but also, where applicable, for any delay in bringing the condonation application. It further emphasised that an appellant should apply for condonation as soon as non-compliance is realised.

The court considered the principle that attorney negligence does not automatically entitle a litigant to condonation. While acknowledging that the fault lay with the attorney rather than being attributed to the appellant personally, the court applied the approach that there is a limit beyond which a litigant cannot escape the consequences of an attorney’s lack of diligence or an insufficient explanation.

In relation to the late notice of appeal, the attorney’s explanation was that he discussed the appeal with counsel and “assumed” counsel would prepare the notice, and that this misunderstanding was compounded by the closure of the office for the Christmas and New Year holidays. The court regarded this explanation as bald and materially incomplete because it did not address basic matters such as the relevant dates, the absence of diary and planning measures, why the firm’s other practitioners could not attend to the task, and what efforts were made to secure the preparation of the notice timeously. The court also treated as a fundamental difficulty the asserted “assumption” that counsel would prepare the notice without a formal brief, particularly given the elementary nature of the requirement and that drafting a notice of appeal is ordinarily attorney work. The court concluded that the explanation for this default was unacceptable and that the failure could not be condoned.

In relation to the late power of attorney, the attorney attributed the omission to “frenetic effort” directed at filing the notice of appeal and the first condonation petition. The court considered this incapable of sustaining scrutiny because those efforts ended in January 1996, yet the power of attorney was executed only on 27 February 1996, leaving an approximately month-long delay unexplained in circumstances involving an elementary procedural step. The court held that no adequate explanation was given for this default.

The court’s main concern lay with the security for costs default and the content of the affidavit supporting the third petition. The attorney stated that he had agreed the quantum of security with respondents’ attorneys, allegedly gave an undertaking, intended to confirm it in writing, but failed to do so due to preparations to relocate offices, with further disruption from the move and eye problems later. The court found serious omissions and considered the account inconsistent with correspondence. On the respondents’ evidence, the attorney had been informed that respondents required R20 000,00 in security and had indicated that he would obtain instructions, rather than having already given an undertaking as security.

Most importantly, the court treated as decisive the letter of 2 May 1996 sent by appellant’s attorneys to the registrar stating that the appellant had already entered into good and sufficient security. When read with subsequent correspondence—including a letter of 8 July 1996 suggesting only an undertaking that security “will be available”—the court held that the statement to the registrar was not in accordance with the facts. The court found that the attorney’s explanation to the Supreme Court of Appeal was itself not truthful and that his failure to annex and address correspondence undermining his version warranted serious censure. The court also noted that the third petition was itself unduly delayed without explanation.

Against this background, and applying authority that where non-observance has been flagrant and gross condonation should not be granted irrespective of prospects of success, the court held that the cumulative effect of the defaults and the unacceptable (and in part untruthful) explanations rendered the applications unworthy of consideration. The court therefore declined to consider the appellant’s prospects of success on appeal, both because they were not adequately set out in the petitions (being stated only as a bald assertion) and because the other factors were sufficient to determine the matter.

The court additionally addressed a misconception reflected in the affidavits that the petitions would be heard simultaneously with the appeal. It explained that, strictly, the appeal date should not be set until condonation for the relevant non-compliance (particularly under Rule 6) has been granted.

On costs, the court reasoned that while the appellant, as between him and the respondents, had to bear the consequences of his attorney’s neglect, there was no reason as between the appellant and his attorney why the attorney—identified as the main offender—should not bear an appropriate share of the costs. The court held that the matter justified a de bonis propriis costs order against the attorney’s firm in respect of the condonation applications.

5. Outcome and Relief

The Supreme Court of Appeal refused condonation in respect of each of the three procedural defaults. The applications for condonation of the late filing of the notice of appeal, the late filing of the power of attorney, and the late furnishing of security for costs were dismissed.

The court ordered that the dismissal be with costs, and further ordered that such costs include the respondents’ costs on appeal.

In addition, the court ordered that the costs of the applications for condonation be paid by the appellant’s attorneys, Papier Charles and Associates, de bonis propriis.

Cases Cited

Federated Employers Fire and General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A).

United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A).

Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A).

Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A).

Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A).

Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A).

Moraliswani v Mamili 1989 (4) SA 1 (A).

Ferreira v Ntshingila 1990 (4) SA 271 (A).

Blumenthal and Another v Thomson NO and Another [1993] ZASCA 190; 1994 (2) SA 118 (A).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Rules of the Supreme Court of Appeal (then Appellate Division), including Rule 5(1), Rule 5(3)(b), Rule 5(4), and Rule 6(2). Rule 6(1) was referred to in correspondence discussed in the judgment.

Held

The court held that the appellant’s repeated and serious non-compliance with the Rules governing the prosecution of the appeal, combined with inadequate, incomplete, and in material respects untruthful explanations tendered by the appellant’s attorney, constituted flagrant and gross non-observance of the Rules. On this basis the condonation applications were refused and were treated as unworthy of consideration irrespective of prospects of success.

The court further held that, although the appellant was bound vis-à-vis the respondents by the consequences of his attorney’s conduct, the circumstances warranted a personal costs sanction against the attorneys responsible for the defaults. It therefore ordered that the costs of the condonation applications be paid by the appellant’s attorneys de bonis propriis, in addition to the general costs consequences of the dismissal.

LEGAL PRINCIPLES

Condonation for non-compliance with the Rules of the Supreme Court of Appeal is a discretionary indulgence and is not a mere formality. An applicant must provide a full and acceptable explanation for the non-compliance and, where relevant, for any delay in seeking condonation, and must do so promptly once the default is realised.

Although prospects of success on appeal are generally a relevant consideration and should be set out sufficiently to enable assessment, prospects are not decisive in every case. Where the non-observance of the Rules is flagrant and gross, and the cumulative effect of the defaults and explanations renders the application unworthy of consideration, condonation may properly be refused regardless of prospects.

A litigant is not invariably insulated from the consequences of an attorney’s lack of diligence. There is a limit beyond which the litigant cannot avoid those consequences, particularly where the explanation tendered is inadequate.

Where attorney misconduct or serious neglect is the principal cause of procedural failures, and especially where the court is misled or material facts are omitted, the court may mark its disapproval through a de bonis propriis costs order against the attorney, while still recognising that the litigant remains responsible towards the opposing party for the procedural posture of the case.

Darries v Sheriff of the Magistrates' Court Wynberg and Another (25/96) [1998] ZASCA 18 (25 March 1998)