About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 71
|
|
Francois v Baker, In re: Baker v Francois (A260/2012) [2013] ZAWCHC 71 (10 May 2013)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case
No. :
A260/2012
In
the matter of:
CALVIN MERVYN FRANCOIS
..............................................................................
Applicant
v
TANIA BARKER
...............................................................................................
Respondent
In re the appeal of:
TANIA BARKER
....................................................................................................
Appellant
v
CALVIN MERVYN FRANCOIS
.
........................................................................
Respondent
Court
:
Judge J I Cloete, Acting Judge A J Smit
Heard
:
10 May 2013
Delivered
:
10 May 2013
JUDGMENT
CLOETE J
:
This is an unopposed application by
the respondent in an appeal lodged by the appellant against a
judgment and order handed down
by the learned magistrate, Mr
Koeries, in the Bellville magistrate’s court on 17 January
2012. For sake of convenience
the parties will be referred to as
they are cited in the appeal.
The respondent asks for an order
dismissing the appeal,
alternatively
that it be struck from
the roll, and
further alternatively
for an order declaring
that the appeal has lapsed. Costs (including those relating to the
removal of the appeal from the roll
by the registrar on 16 November
2012) are sought against the appellant on the scale as between
attorney and client.
The appellant noted an appeal in the
magistrate’s court on 16 February 2012 after the
magistrate had delivered his
response in accordance with
magistrate’s court rule 51(3) on 19 January 2012. The
appeal was accordingly timeously
noted within the period of 20 days
stipulated in that sub-rule.
The appellant was thereafter obliged
to comply with the procedure and time limits for the prosecution of
the appeal laid down
in rule 50 of the uniform rules of court. Of
particular relevance are the following. First, in terms of rule
50(1) the appeal
must be prosecuted within 60 days after the noting
thereof, and unless so prosecuted it shall be deemed to have lapsed.
Second
– and this is one of the necessary steps to be taken in
the prosecution of the appeal for purposes of rule 50(1) –
the
appellant must, within 40 days of the noting of the appeal, apply to
the registrar upon notice to all other parties for the
allocation of
a date for the hearing of the appeal (see rule 50(4)(a)). This is a
necessary step because rule 50(4)(c) provides
that upon receipt by
the registrar of an application in terms of rule 50(4)(a) the appeal
shall be deemed to have been duly prosecuted.
Third, rule 50(5)(a)
stipulates that the registrar shall not assign a date for the
hearing of the appeal until the provisions
of rule 50(7)(a) to (c)
have been complied with. Rule 50(7)(a) requires an appellant to
lodge two copies of the record with the
registrar simultaneously
with the application in terms of rule 50(4)(a); and rule 50(7)(c)
stipulates that the record must be
correct and complete as described
therein. One of the essential components of a correct and complete
record for purposes of rule
50(7)(c) is that all the evidence
necessary for the hearing of the appeal must be included therein.
The appellant has failed to comply
with the provisions of rule 50 in certain material respects. First,
given that she noted the
appeal in the magistrate’s court on
16 February 2012, she was obliged to deliver her application in
terms of rule
50(4)(a) within 40 days thereafter, i.e. by not later
than 17 April 2012. However the application was only delivered
on
23 May 2012, i.e. four weeks after the stipulated time
period expired, as is evident from a copy of the notice attached to
the supplementary affidavit filed on behalf of the respondent in
support of his application. Second, the appellant has still
not
delivered even one copy of the correct and complete record, since
the entire cross-examination of the appellant in the court
a quo
is missing; and the second copy of the record as required by rule
50(7)(a) is entirely absent. The steps that were taken by the
registrar to nonetheless allocate dates for the hearing of the
appeal do not remedy these fundamental defects since the registrar
was not permitted, by virtue of the provisions of rule 50(5)(a), to
have allocated any date at all.
The registrar is not empowered to
grant condonation for non-compliance with the provisions of rule 50.
A court will only entertain
condonation if good cause is shown by
the party in default as to why it should be granted. Not only is
there no opposition to
the respondent’s application, there is
also no application by the appellant before this court for such
condonation; and
there is furthermore no indication in the record
why good cause exists for any condonation at all. The inevitable
result of the
appellant’s disregard for the provisions of rule
50 is that she has failed to prosecute the appeal within the
stipulated
period of 60 days of the noting thereof as is required by
rule 50(1), and the appeal has accordingly lapsed.
Turning now to the issue of costs.
During June 2012 the respondent’s attorneys received written
notification from the registrar
that he had assigned the date of
16 November 2012 for the hearing of the appeal. During October
2012 the respondent’s
attorneys briefed counsel to prepare
heads of argument and to appear on his behalf in the appeal. The
appellant did not comply
with the provisions of rule 50(9) in that
she failed to file heads of argument not less than 15 days before
the appeal was scheduled
to be heard, i.e. by 25 October 2012.
In fact she did not file heads of argument at all.
When the respondent’s attorney
contacted the appellant’s attorney of record to enquire as to
why her heads of argument
had not been filed, he responded that the
registrar had removed the appeal from the roll since the appellant
had failed to arrange
for an early allocation of the appeal (as
required by practice note 47) given that the record exceeds 400
pages.
On 31 October 2012 the
respondent’s attorney wrote to the appellant’s attorney,
drawing his attention to the
provisions of practice note 47 as well
as to the fact that the record of the proceedings was incomplete. It
appears that the
appellant’s attorney failed to respond
thereto.
During November 2012 the respondent’s
attorney received a further notification from the registrar that he
had assigned a
new date in May 2013 for the hearing of the appeal.
Leaving aside the fact that by that
stage the appeal had long since lapsed, and that the registrar
should thus not have even entertained
a request to re-enrol the
appeal for hearing,it has transpired that the appellant has again
failed to arrange for an early allocation
of the appeal in terms of
practice note 47. In addition no heads of argument have been
filed on behalf of the appellant;
nor has the appellant taken any
steps to ensure that a correct and complete record, in duplicate,
has been filed with the registrar.
It is apparent from correspondence
which is annexed to the supplementary affidavit filed on behalf of
the respondent in support
of this application that the appellant
persists in her utter disregard for the provisions of rule 50 and
practice note 47 without
even attempting to provide an explanation
therefor. In these circumstances it is my view that it would be
appropriate, as a mark
of the court’s displeasure, to order
that the appellant pay both the costs of the respondent’s
application as well
as his costs incurred in the abortive appeal on
a punitive scale.
[13]
In the result I propose the following order:
[1] It is declared that the appeal
has lapsed.
[2] The appellant shall effect
payment of the respondent’s costs in the application to declare
that the appeal has lapsed,
together with the costs incurred by the
respondent in respect of the appeal (and including those culminating
in the removal of
the appeal from the roll on 16 November 2012)
on the scale as between attorney and client.
_________________
J I CLOETE
SMIT
AJ
I
agree.
_________________
A J SMIT
cLOETE
J
It
is so ordered.
_________________
J I CLOETE