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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
CASE NO: CIV APP FB 05/2022
In the matter between
COETZER (BORN STRICKLAND), LYNN N.O. 1st Apperlant
In her capacity as trustee for the Junior Partner Trust
BERGE, CRAIG N.0. 200Appellant
In his capacity as trustee for the Junior Partner Trust
THWAITS, SYDCARL GEORGE N.O. 3rd Appellant
In his capacity as trustee for the Junior Partner Trust
AND
EXTRASEC SECURITY (PTY) LTD 1st Respondent
MALAN, BAREND HERCULES PETRUS 2nd Responden t
MASOKO, BENJAMIN DIFATLHO 3rd Responden t
BURGER, FRANS HENDRIK
MALAN, WILLEMINA HENDRIKA
S.A.N. INVESTMENTS (PTY) LTD
THE MASTER OF THE HIGH COURT
THE TRUSTEES FOR THE TIME BEING
OF THE BEN MALAN FAMILY TRUST
CORAM: HENDRICKS JP, REDDY J & MORGAN AJ
Heard: 20 February 2026
4th Respondent
5th Respondent
6th Respondent
7th Respondent
8th Respondent
Delivered: This judgment was handed down electronically, circulated to the
parties' representatives via email, uploaded to Caselines , and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 20 May 2026 at 14h00.
Summary:
Appeal - Condonation - Late filing of notice of appeal and late prosecution
of appeal - Overarching test is the interests of justice - Melane factors inform
but do not replace that enquiry - Flagrant and continual non-compliance -
Where breaches are flagrant and no acceptable explanation advanced,
prospects of success irrelevant - Condonation refused - Appeal deemed to
have lapsed under Rule 49(6)(a) ex lege - Rule 49(6)(a) distinguished from
Rule 49(7)(d) - Rule 49(7)(d) not automatic; requires court order -
Reinstatement refused - Costs on Scale B.
2
ORDER
Consequently, the following order is made:
1. Condonation for the late filing of the Notice of appeal is refused.
2. Condonation for the late prosecution of the appeal is refused.
3. The appeal is declared to have lapsed.
4. The re-instatement of the appeal is refused.
5. The appellants/applicants in their capacities as trustees of the
Junior Partner Trust are ordered to pay the costs of the appeal
on a party-and-party basis, on Scale B, to be taxed; which costs
include the costs of the application for leave to appeal in the
court a quo.
JUDGMENT
HENDRICKS JP
Introduction
[1] The appellants as applicants launched an application praying for relief in
the following terms: 'that the Junior Partner Trust be declared to be a
shareholder in respect of 50% of the issued shares in the first respondent;
that the first respondent be wound-up, alternatively, that the second, third
and fourth respondents be removed as directors of the first respondent,
further alternatively, that they be declared delinquent directors as provided
in section 162 of the Companies Act 71 of 2008; and costs of this
application.' This application was opposed by the first to sixth and eight
respondents. The matter served before Petersen AJ (as he then was) on
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11 March 2021, when judgment was reserved. On 19 May 2021, the
application was dismissed with costs.
[2] Dissatisfied with the outcome, the appellants applied for leave to
appeal to the Full Court of this division. On 07 December 2021 leave
to appeal to the Full Court was granted, with the costs of the
application for leave to appeal to be costs in the appeal itself. A
notice of appeal was signed on 27 January 2022, served and filed
on 31 January 2022. The record of appeal was served on the
respondents on 28 June 2023. Not only was the notice of appeal
filed late but the prosecution of the appeal itself was only proceeded
with approximately a year and five months after delivery of the notice
of appeal.
[3] In terms of Rule 49 (2) of the Uniform Rules of Court, when leave to appeal
to the Full Court is granted, a notice of appeal shall be delivered to all
parties within twenty (20} days after the date upon which leave was
granted or within such longer period as may upon good cause shown be
permitted. As already alluded to earlier, the notice of appeal was served
and filed after the stipulated period of twenty (20) days. No application for
condonation for the late serving and filing of the notice of appeal was
made at that stage, showing good cause for this Court to allow the delivery
(service and filing) of the notice of appeal within a longer period, as
required in terms of Rule 49 (2).
4
[4] The appellants only served and filed a condonation application on 09
February 2024, more than two (2) years after the notice of appeal was
filed. This was done merely two (2) weeks before the date of hearing
scheduled for 27 February 2024. At that stage, no heads of argument
either was filed and served by the appellants. As an explanation proffered
for the delay in an affidavit deposed to by the appellants' attorney, Ms.
Chantal Rodriguez, the following is stated: due to the time of the year
(December) as well as the fact that she was extremely busy, she was in a
rush to finalize all the urgent matters she had; she drew the file and put it
aside in order to give attention to it as soon as all the urgent matters had
been attended; she did not diarize the date when the notice of appeal were
to be served and filed; somehow this matter completely slipped her mind
until 20 January 2022, after she returned from holiday, when she had gone
through her files and discovered this file on her desk. She instructed
counsel to draft and settle the notice of appeal, which was done and
returned to her on 27 January 2022 and which was served and filed on 31
January 2022.
[5] Although the notice of appeal was filed late, an application was made for
condo nation for the late filing thereof only on 09 February 2024, more than
two years after the notice of appeal was filed. The appeal was prosecuted
a year and five months after the notice of appeal was filed. This despite,
the appellants did not by then apply for the reinstatement of the appeal
which was deemed to have lapsed. It was only an application for
condonation for the late delivery of the notice of appeal that was made.
This application for condonation for the late filing and serving of the notice
of appeal was opposed by the first, second, fourth to sixth and eight
respondents. They take issue with the fact that no detailed explanation is
5
proffered why the condonation application was not delivered earlier.
Furthermore, good cause for the inordinate long delay is not demonstrated
by the appellants and/or their legal representative, Ms. Rodriguez.
[6] To add, copies of the appeal record was not delivered within sixty (60)
days of noting the appeal, as required in terms of Rule 49 (6) (a) and the
Rule 49 (7) (a). Further, in terms of Rule 49 (6) (b) a court to which the
appeal is made may, on application of the appellant, and upon good cause
shown, reinstate an appeal which has lapsed. It is common cause and
undisputed that the appellants only applied for a date for the hearing of
the appeal and delivered copies of the record on 28 June 2023, almost a
year-and-a-half after the notice of appeal had been served and filed
(delivered). This clearly demonstrates that the appellants did not intend to
prosecute their appeal at their earliest convenience and within the
stipulated time frames.
[7] The respondents' countenance this with a counter application in terms of
Rule 49 (7) (d), which was delivered on 05 March 2024. On 10 May 2024,
more than two months later, the appellants filed a notice applying for an
order for the reinstatement of the appeal. It is quite apparent that the
appellants only apply for the reinstatement of the appeal, which was
deemed to have lapsed, after they received the respondents' Rule 49 (7)
(d) application. No attempt is made in the affidavit to explain why the
reinstatement application was only delivered on 10 May 2024 and not
sooner. The explanation advanced falls woefully short of a detailed
explanation for the delay. Substantial periods of delay are unexplained.
The periods 09 June 2022 to 14 September 2022, as well as the period
6
08 November 2022 to 28 February 2023 are unaccounted for.
Furthermore, no confirmatory affidavits of any of the three (3) appellants
as applicants are attached to the founding affidavit of Ms. Rodriguez, does
not have personal knowledge of the financial position of the Junior Partner
Trust. This is fatal.
[8] The respondents contended that condonation for the late filing of the
notice of appeal should not be granted. Equally so, should condonation
not be granted for the belated application for the reinstatement of the
appeal, which is deemed to have lapsed, as well as the late prosecution
of the appeal. Reliance was placed on the matters of SA Express Ltd v
Bagport (Pty) Ltd1; Ngaka Modiri, Molema District Municipality v
Quantibuilc/2; and Harry's Tyres (Pty) Ltd v Symes and Others3. I find it
prudent to quote, in relevant parts, extensively from these aforementioned
judgments, which encapsulate the distinct points raised with regard to
condonation; the late filing of the notice of appeal; the late filing of the
record; the appeal deemed to have lapsed; the late filing of the application
for reinstatement of the appeal; the conduct of the appellants and their
legal representative in not prosecuting the appeal timeously; and the
absence of confirmatory affidavits by the three (3) appellants/ applicants.
[9] The applicable test that governs condonation is well established.
Condonation is not for the mere asking. It is a discretionary judicial remedy
to be exercised within the prism of the interests of justice. To this end, in
1 2020 (5) SA 404 (SCA).
2 (CIV APP FB12/2022; 3352/2019) (2024) ZANVVHC 101 (12 April 2024).
3 (CIV APP FB 10/2023) [2024] ZANWHC 75 (13 March 2024).
7
Van Wyk v Unitas Hospital and Another', Off-Beat Holiday Club and
Another v Sanbonani Holiday Spa Shareblock Limited and others5 and
Grootboom v National Prosecuting Authority and Another6, the apex Court
reaffirmed that the overarching enquiry is whether the interests of justice
favour the relief being granted. In Melane v Sanlam Insurance Co Ltd7,
the following factors were identified as considerations relevant to this
enquiry. These include the degree of non-compliance; the explanation
therefor; the importance of the case; the prospects of success on the
merits; the respondent's interests in finality; the convenience of the court;
and the avoidance of unnecessary delay in the administration of justice.
These considerations are not individually decisive. It axiomatically follows
that these considerations must be weighed holistically within the interests
of justice enquiry.
[1 O] A full, detailed and accurate account of the causes of the delay and their
effects must be furnished so as to enable the court to understand clearly
the reasons and to assess the responsibility. It must be obvious that, if
the non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must be spelled out.
See: Uitenhage Transitional Local Council v South African Revenue
Service.8
4 (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (6 December 2007).
5 (CCT106/16) [2017) ZACC 15; 2017 (7) BCLR 916 (CC); 2017 (5) SA 9 (CC) (23 May 2017) ..
6 (CCT 08/13) [2013) ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014) 1 BLLR 1 (CC); (2014) 35 ILJ 121
(CC) (21 October 2013)
7 1962 (4) SA 531 (A).
8 2004 (1) SA 292 (SCA) at paragraph [6]
8
[11] In SA Express Ltd v Bagport (Pty) Ltd, supra, the prosecution of the appeal
was beset by numerous delays for which the appellant's attorney
attempted to lay the blame at the door of his correspondent. The court
was of the view that the attorney had himself appointed the correspondent
and could not escape the consequences of his agents' negligence. The
primary obligation to produce a proper record and file it timeously lay with
him. It must furthermore have been clear to him from an early stage that
his correspondent was as out of his depth as he was, yet he continued to
rely on the correspondent's advice. The attorney's negligence lay in the
fact that he did not acquaint himself with the rules of the court; did not
have even the most rudimentary understanding of what had to be done;
relied on the correspondent who also proved himself to be unqualified to
do the work; and steadfastly failed or refused, until it was too late, to
engage the services of people who knew what to do and could do the job.
The conclusion was inescapable that the attorney was grossly negligent
throughout. The attorneys' explanation was not reasonable and all that it
did was to establish his negligence. The SCA found that the present case
was the type of case in which condonation should be refused irrespective
of the prospects of success and irrespective of the fact that the blame lay
solely with the attorney: the breaches of the rules had been flagrant and
continual. I find this dictum quite apposite.
[12] The authorities are clear that in cases of flagrant breaches of the rules,
especially where there is no acceptable or satisfactory explanation
advanced therefore, as in casu, it is unnecessary for the court to assess
the prospects of success and condonation should not be granted,
9
whatever the merits of the appeal might be. This applies even where the
blame lies solely with the attorney.9
[13] In a Full Court judgment in this Division, Quantibuild (Proprietary) Limited
vs Ngaka Modiri Molema District Municipality1°, the deeming provisions in
terms of Rule 49 (6)(a) are dealt with comprehensively. I deem it prudent
to quote paragraph [17] to [20] insofar as the deemed lapsing of the appeal
is concerned.
"[17) In terms of Rule 49(6)(a) if written application to the Registrar for the
hearing of the appeal is not timeously made, the appeal "shall be deemed
to have lapsed". This begs the question how the deeming provision in Rule
49(6)(a) is to be interpreted. In Eastern Cape Parks and Tourism
Agency v Medbury (Pty) Ltd tla Crown River Safari 2018 (4) SA 206
(SCA) at paragraphs [29) to [34), Navsa JA, writing for the Court, provides
a useful exposition on how deeming provisions in legislation has been and
is to be interpreted, where he stated as follows:
'129] At the outset it is necessary to have regard to how deeming
provisions in legislation, have been dealt with in case law and
by commentators. Bennion Statutory Interpretation 3 ed 1997
says the following about deeming provisions at 735:
'Deeming provisions in Acts often deem things to be
what they are not. In construing a deeming provision
9 See: PE Bosman Transport Works Commfttee and Others v Piel Bosman Transport (Pty) Lid 1980 (4) SA 794 (A) at
799D-E;
Rennie v Kamby Farms (Ply) Ltd 1989 (2) SA 124 (A) at 131 H-132A;
Ferreira v Ntshingila 1990 (4) SA271 (A) at 281J-282A;
Tshivhase Royal Council and Another v Tshivhase and Another: Tshivhase and Another v Tshivhase and Another
1992 (4) SA852 (A) at 859E-F;
Blumenthal and Another v Thompson NO and Another 1994 (2) SA 118 (A) at 1211-122B;
Darries v Sheriff, Magistrate's Court, Wynberg and Another 1998 (3) SA 34 (SCA) at 41 D;
AYMAC CC v lNidgerow 2009 (6) SA 433 (W) at 451J-452G.
AYMAC CC v lNidgerow 2009 (6) SA 433 (W) at 451J-452G.
Finbro Furnishers (Ply) Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA 773 (A) at 789 C.
to CIV APP FB 12/2019 (08 December 2022).
10
it is necessary to bear in mind the legislative purpose.'
(My underlining.)
The first sentence of the quote is demonstrated by the facts in Mouton v
Boland Bank Ltd 2001 (3) SA 877 (SCA). In that case the court was dealing
with a deeming provision contained in the Close Corporations Act 69 of
1984, relating to the reregistration of a close corporation. The deeming
provision there in question read as follows:
'The Registrar shall give notice of the restoration of the
registration of a corporation in the Gazette, and as from the
date of such notice the corporation shall continue to exist and
be deemed to have continued in existence as from the date
of deregistration as if it were not deregistered.' (Emphasis
added.)
That provision deemed something to be what in fact was not so, namely,
that the close corporation was never deregistered.
[30] An exposition of types of deeming provisions and how they should
be construed is to be found in the decision of this court in S v
Rosenthal 1980 (1) SA 65 (A). Trollip JA said the following at 75G
H:
'The words "shall be deemed" ("word geag" in the signed,
Afrikaans text) are a familiar and useful expression often used
in legislation in order to predicate that a certain subject-matter,
eg a person, thing, situation, or matter, shall be regarded or
accepted for the purposes of the statute in question as being
of a particular, specified kind whether or not the subject-matter
is ordinarily of that kind. The expression has no technical
connotation. Its precise meaning, and especially its effect.
must be ascertained from its context and the ordinary canons
of construction.'
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[31) The court in Rosenthal went on to explain:
'Some of the usual meanings and effect deeming provisions can
have are the following. That which is deemed shall be regarded or
accepted m as being exhaustive of the subiect-matter in question
and thus excluding what would or might otherwise have been
included therein but for the deeming, or (ii) in contradistinction
thereto, as being merely supplementary, ie, extending and not
curtailing what the subiect-matter includes. or (iii) as being
conclusive or irrebuttable, or (iv) contrarilv. thereto as being merely
prima facie or rebuttable. I should add that, in the absence of any
indication in the statute to the contrary, a deeming that is exhaustive
is also usually conclusive, and one which is merely prima facie or
rebuttable is likely to be supplementary and not exhaustive. '.
[33) The court in Rosenthal, at 76B-77A, had regard to R v Haffejee &
another 10945 AD 345, ... At 352-353, Watermeyer CJ, in
considering the meaning and effect of deeming provisions, with
reference to English case law, said the following:
'It is difficult to extract any princiole from these cases. except
the well-known one that the Court must examine the aim,
scope and obiect of the legislative enactment in order to
determine the sense of its provisions ...
[34) From what is set out above, it follows that a deeming provision must
always be construed contextually and in relation to the legislative
purpose ... "
(my emphasis)
[18) Of importance to note is that there is no application before this Court
by the respondent seeking a declaratory order that the appeal has
lapsed. This is despite the fact that the respondent knew as far back
as 17 May 2022, when it was served with the notice of set down,
12
that there was non-compliance with Rule 7(2), 49(13)(a) and
49(7)(d) of the Uniform Rules of Court.
{19] In Genesis One Lighting (Pty) v Bradley Lloyd Jamieson and
Others (3212/2019) [2021] ZAGPJHC 862 (23 July 2021), the
central issue in the matter was whether the respondents' appeal had
lapsed. At paragraphs [33] to [38), Gilbert AJ provides a useful
exposition in this regard where the following is said:
{33) Rule 49(6)(a) expressly provides that if written application to
the Registrar for the hearing of the appeal is not timeous/y
made, the appeal "shall be deemed to have lapsed".
Accordingly. the consequence of a failure to comply with rule
49(6)(a) is a deemed lapsing of the appeal. Should there be
a dispute about this, then the court can be approached for
the appropriate declaratory relief as to whether the.appeal
has lapsed or not.
[34) In contrast, as pointed out by the respondents, non
compliance with rule 49(7)(a) relating to the filing and
furnishing of an appeal record does not contain a similar
provision that there is a deemed lapsing of the appeal. Rather.
rule 49(7)(d) provides that:
"If the party who applied for a date .for the hearing of the
appeal neglects or fails to file or deliver the said copies of the
record within 40 days after the acceptance by the registrar of
the application for a date of hearing in terms of subrule 7(a)
the other party may approach the court for an order that
the application has lapsed."
[35] Although rule 49(7J(d} does not refer to the "appeal" as
lapsed but rather "the application" as lapsed, the
application referred to is the application for a date for the
13
hearing of the appeal in terms of rule 49(6)(a), the lapsing
of which would have the effect as the appeal itself having
lapsed.
[36] One interpretation of rule 49(7) is that upon a failure of a party
to timeously file and furnish the record, the appeal lapses, as
is the position with non-compliance with rule 49(6)(a). If this is
correct, then the court when approached under rule 49(7)
would be confirming that the appeal has lapsed.
[37} An alternate interpretation of rule 49(7) Is that if the
appellant fails to file or furnish the record. the appeal Is
not deemed to have lapsed fin contrast to rule 46(6>(a))
but the court can then be approached for an order to
effectively decide whether the appeal has lapsed rather
than confirming what would already have been a deemed
lapsing of the appeal This would enable the court to take
into account a variety of factors in deciding whether to
grant an order that the appeal has lapsed.
[38] One of those factors may be whether by the time the application
in terms of rule 49(7)(d) is heard there is a compliant appeal
record and the appellant has launched an application for the
appeal court to consider in due course as envisaged in
rule 49(7)(a)(ii) condoning its failure to have timeously filed
and furnished that record. Rule 49(7)(a)(ii) expressly provides
that an appellant who fails to timeously file and furnish the
record can apply for condonation for the omission. The
condonation application will be considered by the appeal court
at the hearing of the appeal. Rule 49f7)(c) further provides that
the Registrar after delivery of the copies of the record shall
assign a date for the hearing of the appeal or for the
application for condonation and appeal, as the case may be.
It is clear that it is for the appeal court to consider the
condonation application. Accordingly, a court faced with an
14
application in terms of rule 49(7)(d) for an order that the appeal
has lapsed may decline to an order that the appeal has lapsed
provided that there is an application for condonation that will
seNe before the appeal court in course.
(my emphasis)
[20] Having regard to the approach to be adopted when dealing with a
deeming provision as espoused in Eastern Cape Parks and
Tourism Agency v Medbury (Pty) Ltd and the useful exposition in
Genesis One Lighting (Pty) v Bradley Lloyd Jamieson and
Others, the alternate interpretation of Rule 49(7) that if the appellant
fails to file or furnish the record, the appeal is not deemed to have
lapsed (in contrast to Rule 46(6)(a)), but the court can then be
approached for an order to effectivel y decide whether the appeal
has lapsed, rather than confirming what would already have been a
deemed lapsing of the appeal is to be preferred . This would enable
the court to take into account a variety of factors in deciding whether
to grant an order that the appeal has lapsed."
[14] It is important to underscore the two mechanisms by which an appeal
may lapse under Rule 49. The distinction is exploited as follows. In
terms of Rule 49(6)(a), the failure to timeously apply to the Registrar
for a date for the hearing of the appeal causes the appeal to be
deemed to have lapsed automatically, by operation of the rule itself.
No court order is required to give effect to that deeming; it operates
ex lege upon non-compliance. The position under Rule 49(7)( d) is
materially different. Where an appellant fails to timeously file and
furnish copies of the appeal record, the rule does not deem the appeal
to have lapsed. It instead entitles the respondent to approach the
court for an order to that effect, clothing the court with a discretion to
consider all relevant circumstances, including whether a condonation
15
application is pending. As this Division is held in Quantibuild, the
preferable interpretation of Rule 49(7}(d) is that the court is
empowered to decide whether the appeal has lapsed, rather than
merely confirming a lapse that has already occurred by operation of
law. In the present matter, the appeal was deemed to have lapsed
under Rule 49(6)(a) by reason of the appellants' failure to timeously
apply for a hearing date. The respondents' Rule 49(7)(d) counter
application reinforces that conclusion. On a conspectus of the
procedural history, and having refused both condonation and
reinstatement, we are satisfied that the appeal has lapsed and that no
order for reinstatement is warranted.
[15] Insofar as the costs of the appeal are concerned, it should follow the result
and be awarded in favour of the successful litigants, the respondents, on
a party-and-party basis, on Scale B, to be taxed. This should include the
costs of the application for leave to appeal in the court a quo.
Order
[16] Consequently, the following order is made:
1. Condonation for the late filing of the Notice of appeal is refused.
2. Condonation for the late prosecution of the appeal is refused.
3. The appeal is declared to have lapsed.
4. The re-instatement of the appeal is refused.
5. The appellants/applicants in their capacities as trustees of the
Junior Partner Trust are ordered to pay the costs of the appeal on
a party-and-party basis, on Scale B, to be taxed; which costs
16
include the costs of the application for leave to appeal in the court
a quo.
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT ,
NORTH WEST DIVISION, MAHIKENG
I agree
A REDDY
JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
I agree
LMMORGAN
ACTING JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
17
Appearances
Counsel for the Appellants: Adv. Hayes
Instructed by: LFS Inc. Attorneys
Counsel for the 1st, 2nd, 4th, 5th & 6th Respondents: Adv. Prinsloo
Instructed by: Maree & Maree Attorneys Inc
18