JUDGMENT
A2025/086471 _29042026 / bs
2
appellant's attorney asserting that the appeal has now
lapsed. The respondent brought an application to declare
the appeal lapsed.
The application was not attached to the
correspondence uploaded to CaseL ines . It was, we are told,
issued under a different case number and was uploaded to
Court Online. CaseLines is the interface with the court
documents used when a matter is argued in court.
CourtOnline is the secure archive of material filed with the
Registrar. It is not generally used to access documents
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during argument, because it does not allow documents to be
marked -up or searched easily. A directive issued by this
court when the rol l for today was published directed the
parties to ensure that all relevant documents were made
available to the court on CaseL ines and in hardcopy. This
was not done.
When the matter was called today, Ms Putzi er , who
appeared for the respondent , confirmed that the application
to declare the appeal lapsed will be persisted with. Mr
Shongwe , who appeared for the appellant, quite
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understandably asked for an opportunity to file an
answering affidavit in that application . Mr Shongwe
furthermore suggested that the matter proceed on the basis
that the appeal could be heard on its merits today. T he
application to declare the appeal lapsed could then, he
JUDGMENT
A2025/086471 _29042026 / bs
3
suggested, be run in parallel , with pleadings being
exchanged after the appeal is heard on the merits, and,
presumably , a further hearing in future on that question .
That approach is inappropriate, and we will not
accept Mr. Shongwe’s suggestion.
The first question in this appeal is whether the appeal
is properly before us. That question is not ripe for decision
today, precisely because the application to declare the
appeal lapsed is not before us, and the appellant has not
been given a reasonable opportunity to file an answering 10
affidavit in that application . In addition, there will have to
be a reply, heads of argument, and perhaps oral argument
in the application . None of that has been done.
If the appeal has lapsed, then the merits do not arise.
The question of whether the appeal has lapsed must
therefore be determined first. It follows that neither the
application to have the appeal declared lapsed, nor the
appeal itself are ripe for hearing before us today. The
appeal will accordingly have to be postponed, sine die , and
re -enrolled when it is ripe.
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The question now is what costs order, if any, we
should make. The respondent avers that the appeal lapsed
on the 1 5 September 2025. But i t did not bring the
application to have the appeal declared lapsed until 20 April
2026. That is in itself a lengthy delay worthy of censure.
JUDGMENT
A2025/086471 _29042026 / bs
4
However, the principal reason why we are inclined to
award attorney and client costs against the respondent is
that no steps whatsoever have been taken place the court in
possession of the application to have the appeal declared
lapsed. If the respondent w as inclined to conceal the
application from the court, it could have done no better than
it did. It issued the application under a different case
number and uploaded the application to Court O nline when
the respondent knew or ought to have known that access to
the papers was required in hardcopy and on CaseL ines. I
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do not, of course, suggest the respondent sought to conceal
the application from us, but that is the effect of its conduct.
That is also worthy of censur e, because it wasted a great
deal of judicial time taken in preparing for this appeal. We
have read a significant record and we were ready to decide
the appeal on the merits today. We would not have prepared
on the merits had we been informed that the application to
declare the appeal lapsed had been filed, and had we been
placed in possession of it.
It was suggested by Ms Putzi er that the primary fault
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for the postponement lies with the appellan t, given that the
appellant did not respond immediately to the
correspondence directed to her legal representatives on 20
April. While it would have been better if the appel lant ’s
legal representatives had replied immediately to that