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[2019] ZASCA 171
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Zwane NO and Another v Pretorius (399/2018) [2019] ZASCA 171 (29 November 2019)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 399/2018
In the
matter between:
SAMUEL DEMOCRACY ZWANE
N.O.
First Applicant
SAMUEL DEMOCRACY
ZWANE
Second Applicant
and
ANDRE
PRETORIUS
Respondent
Neutral
citation:
Samuel Democracy Zwane N.O. v Andre Pretorius
(399/2018)
[2019] ZASCA 171(29 November 2019)
Coram:
Cachalia, Swain and Mokgohloa JJA
Heard:
21 November 2019
Delivered:
29 November 2019
Summary:
Condonation: application for condonation for late filing of
appeal application not granted – no prospects of success -
appeal
struck from the roll.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria
(Prinsloo J sitting as court of first instance):
1 The
application for condonation is dismissed with costs. 2 The appeal is
struck from the roll.
JUDGMENT
Mokgohloa
JA
(Cachalia and Swain JJA concurring):
[1]
This is an application for condonation of the late filing of
an appeal. The first applicant, Samuel Democracy Zwane N.O, is cited
herein in his official capacity as the sole trustee of the Democracy
Zwane Family Trust, the owner of a farm known as Portion 11
farm
Uitgevallen 134 IT, Ermelo, previously owned by the late Ms Lesley
Megan Pretorius. The trust bought the farm on 6 February
2015 from Mr
Pretorius who was the executor to Ms Pretorius’ estate. It was
registered into the trust’s name on 4 May
2015.
[2]
The farm was initially advertised to be sold on auction on 29
November 2014. During October 2014, the second applicant representing
the trust, approached Mr Pretorius and informed him that he was
interested in buying the farm. On 23 October 2014, Mr Pretorius
and
the trust entered into a sale agreement (the first agreement). The
agreement was subject to the condition that the trust had
to obtain a
loan of R7.5 million (the purchase price) within 30 days, failing
which the agreement would lapse. Possession and occupation
of the
farm was to be given to the applicants on the date of registration of
the bond.
[3]
The first sale agreement lapsed because the trust failed to
secure a loan to pay the purchase price as per the agreement. In the
meantime, the auction sale proceeded on 29 November 2014 and the
respondent, Mr Andre Pretorius, only bought 67 head of cattle,
farm
equipment and other loose items. The farm itself was not sold because
the reserved price could not be reached.
[4]
Soon after the auction, the respondent and Mr Pretorius
entered into an oral agreement in terms of which the respondent would
maintain
the farm and the grass until the farm is purchased and
transferred to the new purchaser. In return, the respondent would
keep the
cattle he bought on auction on the farm, fertilize, cut the
grass and make bales which would become his property to use as he
pleased.
[5]
On 4 December 2014, Mr Pretorius and the trust entered into
another sale agreement in terms of which the first agreement was
revived.
This agreement lapsed as well for the same reasons that the
trust had failed to obtain the necessary loan.
[6]
The respondent continued to maintain the farm as per the oral
agreement he had with Mr Pretorius. During December 2014 he
fertilised
the grass. A month later he cut the grass and made 400
bales which were packed behind the barn on the farm. And again during
January
2015, he fertilized the grass and in March 2015 he cut and
made another 292 bales.
[7]
On 6 February 2015, a third sale agreement was entered between
Mr Pretorius and the trust on the same terms as the first agreement
except for the purchase price having been reduced to R7.2 million.
This time the trust managed to obtain the loan from the bank
and the
farm was subsequently transferred and registered in its name on 4 May
2015.
[8]
A day or two after the transfer, the second applicant visited
the farm and allowed the respondent to remove the cattle but refused
him to remove the 692 bales of grass. The respondent instituted an
action claiming ownership of the bales.
[9]
The trial proceeded before Prinsloo J in the Gauteng Division
of the High Court, Pretoria. On 24 February 2017, he handed down his
judgment having found in favour of the respondent, and ordered the
applicants to deliver the bales to the respondent. Application
for
leave to appeal this judgment was dismissed on 25 April 2017. The
applicants applied to this court for leave to appeal. On
11 June
2018, this court referred the application for leave to appeal for the
hearing of oral argument.
[10]
Before considering the merits of the appeal, it is necessary
to decide whether we should condone the failure by the applicants to
pursue the appeal timeously and properly. And if so, whether to
reinstate the appeal.
[11]
The application for leave to appeal was filed in this court on
19 April 2018. The rules of this court required the record to have
been filed on 25 May 2017. The explanation proffered by the second
applicant for the delay of almost eleven months to file the
appeal
record was an alleged negligence on the part of his attorneys. In
that regard he states:
‘
53. I did not do nothing in this regard. I
instructed attorneys TMN Kgomo & Associates Incorporated (“TMN
Kgomo”)
who instructed Adv A P Laka SC to represent me as far
(as I am aware) to draw petition. I accepted the advice of the legal
representatives,
especially since Adv A P Laka is a senior counsel.
54. On 25 July 2017 an application for leave to appeal
purporting to be a petition was served and filed on my behalf
petitioning
to the High Court in Pretoria instead of the above
Honourable Court. I attach hereto the Filling Notice, together with
the defective
Notice of Application for Leave to Appeal collectively
as ANNEXURES “A6”.
55. I, on advice of TMN Kgomo attorneys and entrusted
them and therefore waited for the appeal to be adjudicated upon.
However,
nothing happened and I was not informed on the status of the
appeal. I am advised that the procedure adopted is flawed and my
attorney
TMN Kgomo should have known better.
56. Only on 5 February 2018 did I consult my current
attorneys of record to attempt for them to assist me in finalising
the already
pending petition. I was then informed of the flawed
procedure followed by TMN Kgomo attorneys. My attorney then advised
me that
a petition should be launched to the above Honourable Court.’
[12]
As regards the delay in filing the application of leave to
appeal between 5 February 2018 and 19 April 2018, the second
applicant
explained that it took him time to obtain the relevant
documents, such as transcripts and court orders. He explained further
that
he had to obtain funds to pay his new attorneys and once that
was secured, his bank made a mistake by depositing the funds into
a
wrong account.
[13]
It is apparent that there are significant
gaps in the second applicant’s explanation. There is a
substantial amount of time
unaccounted for. This is from 25 April
2017 when leave to appeal was refused until 25 July 2017 when his
attorney allegedly filed
the petition in a wrong court. Again from 25
July 2017 to 5 February 2018 when he became aware that his attorney
had filed a petition
in a wrong court. He does not give an
explanation of the steps he took to follow up with his attorney with
regards to the progress
of the petition. As stated in
Saloojee
& another NO v Minister of Community Development,
[1]
‘
There is a limit beyond which a litigant cannot
escape the results of his attorney’s lack of diligence or the
insufficiency
of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance of the Rules of this
Court. Consideration
ad misericordiam
should not be allowed to
become an invitation to laxity. . . The attorney, after all, is the
representative whom the litigant has
chosen for himself, and there is
little reason why, in regard to condonation of a failure to comply
with a Rule of Court, the litigant
should be absolved from the normal
consequences of such a relationship, no matter what the circumstances
of the failure are.’
[14]
In
Darries v
Sheriff, Magistrate’s Court
,
Wynberg
& another,
[2]
the court pointed out that condonation is not a mere formality and
will not necessarily be granted even where the failure to comply
with
the rules of court is entirely attributable to a party’s
attorney. The court stated:
‘
An appellant should whenever he realises that he
has not complied with a Rule of Court apply for condonation as soon
as possible.
Nor should it simply be assumed that, where
non-compliance was due entirely to the negligent of the appellant’s
attorney,
condonation will be granted. In applications of this sort
the appellant’s prospects of success are in general an
important
though not decisive consideration. When application is made
for condonation it is advisable that the petition should set forth
briefly and succinctly such essential information as may enable the
Court to assess the appellant’s prospects of success.
But
appellant’s prospect of success is but one of the factors
relevant to the exercise of the Court’s discretion, unless
the
cumulative effect of the other relevant factors in the case is such
as to render the application for condonation obviously
unworthy of
consideration. Where non-observance of the Rules has been flagrant
and gross an application for condonation should
not be granted,
whatever the prospects of success might be.’
[15]
In my view, little more need be said. The
failure on the part of the second applicant to comply with the rules
of this court has
been flagrant and inexplicable. He did nothing
after his application for leave to appeal was refused by the trial
court. He sat
back and allowed the respondent to think that he had
abandoned his intention to appeal. And the lack of any explanation
for failing
to comply with time limits given by this court on 11 June
2018 when this court referred the application for leave to appeal to
the hearing of oral evidence, is astonishing. Condonation is not to
be had merely for the asking but 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
[3]
.
The applicants failed to give attention to matters that called for an
explanation. I therefore find it impossible to hold that
the delay in
bringing this application has been explained in a manner that is
satisfactorily.
[16]
The circumstances of this case are such
that we may well have been entitled to refuse the application for
condonation without going
into the question of prospects of success
in the appeal. As pointed out in
Tshivhase
Royal Council & another v Tshivhase & another
[4]
that this court ‘has often said that in cases of flagrant
breaches of the Rules, especially where there is no acceptable
explanation thereof, 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.’ The delay in this matter
is so unreasonable and the explanation offered is unacceptable
and
wanting that we may well have been justified in adopting that course,
I shall however briefly deal with the applicants’
prospects of
success.
[17]
The respondent’s claim is that he had an oral agreement
with Mr Pretorius in terms of which he would maintain the farm,
fertilize
the grass, cut it, prepare bales and keep them as his own.
The applicants contended that the respondent failed to prove his case
of ownership of the bales as he had based his action on being a bona
fide possessor rather than him being the owner of the bales
by virtue
of the oral agreement. This contention was based on what the
applicants allege was the submission made by the respondent’s
counsel in his opening address. According to the applicants, the
respondent’s counsel disavowed reliance on the oral agreement
and persisted that the respondent’s claim was based on him
being a bona fide possessor of the bales.
[18]
Relying on
Saayman
v Road Accident Fund,
[5]
applicants’ counsel argued that the submission by the
respondent’s counsel amounted to a concession which was never
withdrawn. Such concession, the argument continued, prejudiced the
applicants in that they were under the impression that they
had to
defend a claim of ownership of a bona fide possessor and not
ownership based on the oral agreement.
[19]
I find it necessary to refer to the opening address by the
respondent’s counsel. This is what he said:
‘
Die saak van die eiser opsommender gewys, U
Edele, is dat daardie oulandsgras is vrugte van die grond, en die
mees natuurlikse vorm
van waarop eiendomsreg bekom kan word is
afsnyding en in besitname. En toe ons as ’n bona fide besitter
van daardie grond
in terme van ’n ooreenkoms
dit afgesny
het en in besit geneem het deur dit te gaan pak in daardie, met die
kampies, het ons die eienaar daarvan geword.’
(my emphasis).
[20]
The submission by the respondent’s counsel does not
amount to an admission that the claim is based on the respondent
being
a bona fide possessor. Such submission is described in Saayman
as follows:
‘
[12] To my mind this was not an unequivocal
admission but a mere concession made by counsel in the course of his
address. Such a
concession may be withdrawn at any time, particularly
where such a withdrawal will not cause the other party any prejudice.
. . .
[29] Concessions are made by counsel in the course of a
trial for a variety of reasons without a contemplation that he is
thereby
committing his client and without any intention to limit
issues. The statement in question may, for example, be used as an
assumption
on which to found argument, or be made in a bona fide
spirit of fairness, intending to convey to the court counsel’s
candid
view of the way the court should proceed.’
[6]
It
is clear from counsel’s submission that he did not disavow the
respondent’s reliance on the oral agreement.
[21]
Accepting that counsel, in his opening address, referred to the
respondent as a bona fide possessor, that does not change the
respondent’s claim as pleaded in his particulars of claim.
Neither does it alter the evidence of Mr Pretorius which is supported
by that of the respondent that they entered into an oral agreement in
terms of which the respondent acquired ownership of the bales.
Moreover, the trial court, after referring to the definition of a
bona fide possessor, noted that:
‘
In hierdie geval het die eiser regtens aanspraak
op die vrugte, na my mening, in terme van die kontrak met Theunis.
Dit mag dus
wees dat die posisie van ‘n bona fide possessor nie
eers ter sprake kom nie, maar, as hierdie gevolgtrekking verkeerd is,
blyk dit uit die gesag, soos dit aangehaal is, dat die eiser in elke
geval in alle opsigte kwalifiseer vir eiendomsreg van die
bale as hy
‘n bona fide possessor is.’
[22]
The court found that the respondent succeeded in proving that he
became the owner of the bales in terms of the oral agreement
concluded with Mr Pretorius. It found further that this agreement
granted the respondent the right to claim the bales from the
applicants.
[23]
The question is whether the applicants were prejudiced as a result of
that submission. It has to be noted that notwithstanding
the
submission by counsel, the evidence of both Mr Pretorius and the
respondent during the trial was that the respondent acquired
ownership of the bales through an oral agreement entered between
them. This evidence was not disputed. Counsel for the applicants
failed to show us how the applicants could have conducted their
defence differently had the submission not been made.
[24]
Having stated the above, I find that the applicants failed to show
that they have prospects of success in the appeal.
[25]
In the result:
1 The application for condonation is dismissed with
costs.
2 The appeal is struck from the roll.
________________
FE
Mokgohloa
Judge
of Appeal
APPEARANCES
For
Appellant: W Sibuyi
Instructed
by: Morne Coetzee Attorneys, Pretoria
Lovius
Block: Bloemfontein
For
Respondent: P L Uys
M Van
der Westhuizen
Instructed
by: Gerhard Von Wielligh Attorneys, Ermelo
Kramer
Weihmann & Joubert Inc, Bloemfontein
[1]
Saloojee & another NO v Minister of Community Development 1965
(2) SA 135 (A) 141 C-E.
[2]
Darries v Sheriff, Magistrate’s Court, Wynberg & another
1998 (3) SA 34
(SCA) 40I-41E.
[3]
Uitenhagen Transitional Local Council v South African Revenue
Service
2004 (1) SA 292
(SCA);
[2003] 4 All SA 37
;
[2003] ZASCA 76
para 6.
[4]
Tshivhase Royal Council & another v Tshivhase & another;
Tshihvase & another v Tshivhase & another 1992 (4) SA
852
(A) at 859E-F.
[5]
Saayman v Road Accident Fund
2011 (1) SA 106
SCA; [2010] ZASCA 123.
[6]
Ibid.