(1) REPORTABLE: NO
_ {2.)_ OF INTEREST TO O ER
JUDGES:NO
(3} REVISED.
-DATE:Q( 01 Zee&
SIGNATURE
'
\
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: A215/25
· Court a quo Case no: 24564/22
In the matter between:
FRED NDLOVU
and
HALEKOPANE KE.LETSO MATSIPA
PHELOSO JACKSON MPHAFUDI
MZWANDILE THE-KISO SELELE
GRANT NEWTON
•
JUDGMENT
Appl.icant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
2
Summary: Application/or reinstatement of lapsed appeal and ancillary relief including application
to introduce further evidence on appeal.
Held: No compliance with any of the provisions of Rule 49 in relation to the prosecution of the
appeal for a prolonged period. No appeal record filed. Application dismissed.
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, J (BAM Jet MINNAAR AJ CONCURRING):
INTRODUCTION:
[1] Applicant served a notice of motion titled "Correct and consolidated notice of
motion" on 29 July 2026 wherein the following relief is claimed:
"1. Granting leave to the Appellant to supplement and correct the Combined
Applications and the original Notice of Motion in accordance with the Appellant's
Replying and Supplementary Affidavit.
2. Condoning, under Uniform Rule 49(2), the late delivery of the Notice of Appeal
filed on 24 January 2025.
3. Condoning the Appellant's failure to apply for a hearing date within the period
prescribed by the Uniform Rule 49(6)(a).
4_ Condoning, to the extent necessary, non-compliance with the Uniform Rule
49(7)(a), including the failure during the earlier period to deliver an application
under the proviso to Rule 49(7)(a)(ii) while the record was not ready_
3
5. Reinstating appeal A215/25 under Uniform Rule 49(6)(b), read with Rule 37(3)
to the extent necessary.
6. Directing that the electronic appeal record located principally at CaseLines 23 to
33 be accepted as the appeal record, subject to such focused indexing,
paginations, line-numbering or other regularisation as the Court or Registrar may
direct within a period fixed by the Court.
7. Condoning, under section 78 read with section 82( e) of the Promotion of Access
to Information Act 2 of 2000, the late institution of the PA/A court application,
alternatively remitting that issue for determination with such directions as the
Court considers otherwise.
8. Receiving, under section 19(b) of the Superior Courts Act 10 of 2013, the
confined objective further evidence identified in the Appellant's application and
filed source record, to the extent it is not already part of the ordinary appeal
record, including:
8. 1 the certified liquidation and distribution accounts of Micawber 148
(Pty) Ltd and the related liquidation orders;
8.2 The PwC and FluidRock corporate-record custody correspondence;
8 . :1 The DCV dividend calculation and certification:
8.4 the 28 August 2015 lthemba shareholder list and the associated
compelled-disclosure source;
4
8. 5 the bounded litigation and liquidation documents identified in the
Appellant's filed practice and source-control materials.
9. Alternatively to prayer 8, remitting under section 19(c) of the Superior Courts Act
10 of 2013 any narrowly identified factual issue requiring further hearing, with
the directions defining the documents, issues, evidence and timetable.
10. Directing that the Respondents' affidavit served on 29 July 2026 and the
Appellant's Replying and Supplementary Affidavit be read as the answering and
replying papers respectively for the threshold applications, without prejudice to
the Court's determination of the lateness and costs consequences of the
Respondents' filing.
11. Reserving the costs of the condonation, reinstatement, record-regularisation
and further-evidence applications, alternatively directing that those costs be
costs in the appeal.
12. Refusing the Respondents' prayer for costs on Scale C.
13. Further and/or alternative relief'.
[2] Primarily, Applicant seeks reinstatement of a lapsed appeal and condonation for
non-compliance with various sub-rules of Rule 49 in relation to the prosecution of
the appeal. Applicant also seeKs a direction that the electronic appeal record
located at Caselines index items 23 to 33 be "accepted' ' as the appeal record,
and an order that the late institution of an application in terms of the Promotion of
5
Access to Information Act 2 of 2000 ("PA/A") be condoned. Applicant further seeks
an order that the court receive further evidence on appeal.
[3] The application for reinstatement of a lapsed appeal and the substantial ancillary
relief sought in relation thereto follows after an order was granted by the Supreme
Court of Appeal on 5 November 2024, granting leave to Applicant to appeal to the
full court of this division against an order and judgment of Grobler AJ handed
down on the 2nd of May 2024. After leave to appeal was granted, the Applicant
failed to comply with any of the prescribed procedures in terms of rule 49 relating
to the further prosecution of the appeal timeously, and/or correctly, and/or at all,
which explains the various prayers for condonation in the aforementioned notice
of motion.
[4] In terms of the order of Grabler AJ, an application instituted by the Applicant,
claiming payment of alleged arrear dividends owing to him by virtue of his alleged
shareholding in an entity known as Sechaba Group Holdings (Pty) Ltd
("Sechaba') (now deregistered), was dismissed. The four Responderits in this
application, who were also the Respondents in the application a quo, were
directors of Sechaba at the relevant time. The primary relief claimed by Applicant
in the court a quo was for the payment of arrear dividends and interest thereon
for the period between 2005 to 2015. Because Sechaba became deregistered,
Applicant claimed payment from the Respondents in their personal capacities as
erstwhile directors of Sechaba. The court a quo found that the Applicant failed to
prove that he was a shareholder in Sechaba, and because there was a
6
foreseeable and material dispute of fact raised by the Respondents which could
not be resolved in motion proceedings, the Application was dismissed.
[5] In the court a quo, Applicant also claimed an order to obtain documents of
Sechaba previously requested in accordance with section 53(1) of PAIA, as well
as an order to obtain Sechaba's financial statements for the 2021 financial year,
and further company related documents for the period between 15 October 2021
and 21 December 2021. Applicant further sought an order' for the imprisonment
of the four Respondents for contempt of Court, resulting from the alleged non
compliance of a court order in terms of PAIA. The Applicant also sought an order
that the Respondents be declared delinquent directors or placed under probation,
and punitive costs. The Applicant's relief under PAIA was dismissed by the court
a quo because the relief was sought outside the prescribed 180-day period,1 in
the absence of any condonation application. The Applicant's prayers in relation to
the delivery of the financial statements referred to above, and holding the
Respondents in contempt of court were similarly dismissed.
[6] Against the aforesaid background, the application for reinstatement and ancillary
relief should be considered. At the hearing of the application, Applicant appeared
in person and presented argument primarily focused on the reasons why the
Applicant seeks an order to introduce new evidence into the appeal. However,
1 Section 78(2)(b) of the Promotion of Access to Information Act no. 2 of 2000, Regulation 2(3) of the Promotion
of Access to Information Rules and Administrative Review Rules, 2019.
7
there is presently no appeal before this court, and unless the appeal is reinstated
by this court, that issue remains moot because this court will assume appellate
jurisdiction only when the appeal is reinstated, and only then may this court
consider whether this court, sitting as a court of appeal, should exercise its
discretion to allow further evidence on appeal.
APPLICANT'S NON-COMPLIANCE:
[7] • It is common cause that the appeal has lapsed, for various reasons. The non-
compliance with the applicant's various obligations under Rule 49 to duly
prosecute the appeal, which resulted in the appeal to have lapsed, are explained
hereunder. It must be noted that, although applicant represented himself at the
hearing before this court, he was represented by a firm of attorneys during the
entire period when leave to appeal was applied for, was granted, and during the
period when compliance was required with Rule 49 in relation to the prosecution
of the appeal.
[8] Leave to appeal having been granted by the Supreme Court of Appeal on 5
November 2024, Applicant was enjoined to deliver a notice of appeal within 20
days, that is on or before 3 December 2024.2 The Applicant delivered a notice of
appeal out of time on 22 January 2025, by which time the appeal had lapsed. The
Applicant was then entitled to apply for the extension of the period of 13 days in
2 Rule 49(2).
8
terms of rule 49(1 ){b)(ii), showing "good cause", which the Applicant did not do
until 29 July 2026, more than 18 months later.
[9] In the meanwhile, on 13 May 2025 the Applicant delivered an application for leave
to adduce further evidence. That application prompted the attorneys of record for
the Respondents to transmit a letter dated 21 May 2025 to the Applicant's
attorneys of record, recording that the appeal has lapsed and that the application
to allow further evidence would be regarded as pro non scripto until the appeal
was re-instated. Only on 2 July 2025, six weeks after transmission of the letter of
21 May 2025, the Applicant's attorney of record transmitted a letter to the
Respondents' attorney of record recording that they received formal instructions
to apply for the re-instatement of the appeal and condo nation for the late filing of
the notice of appeal. No explanation for this delay was tendered. Thereafter none
of the intended steps conveyed to respondent's attorneys were taken and almost
two months later, on 25 August 2025, the Respondents' attorney of record
transmitted a further letter to the Applicant's attorneys of record, recording that
they were advised more than a month ago that the Applicant would apply for the
reinstatement of the appeal and condonation for the late filing of the notice of
appeal, but that the Respondents' attorney of record still had not received those
applications. Surprisingly, considering the gravity of the situation, that letter
elicited no response from the Applicant's attorneys.
[1 O] On 3 October 2025 the Respondents' attorney of record transmitted a further
email to the Applicant's attorneys, recording that they were advised more than
9
three months earlier that the Applicant intended to apply for the reinstatement of
the appeal. This letter also failed to elicit a response. However, notwithstanding
the absence of any application for reinstatement and/or condonation, the
Applicant served a bundle of documents on the Respondents' attorneys of record
on 2 November 2025, consisting of "Appellant's Supporting Affidavit (PA/A 180
V2. 2 file pre-export); Combined Applications V9 Master (limited advancements
20-10-25); Main Heads - Procedural (V3.8.5A final Court-ready); Main Heads -
Merits (V2.3 final Gout-ready) and Table of Authorities". These documents were
accompanied by a covering letter which contained the following statement:
"The full electronic bundle including annexures A-1 - A6B, verification notes, and
transcripts (7 March - 1 August 2024) is available to all parties on **CaseLines
(Master Bundle 01, CaseLines 23 - 33). **".
[11] This confusing bundle of documents did not contain any application for
reinstatement of the appeal. The Respondents' attorney of record then addressed
correspondence to the Applicant's attorney of record on 25 November 2025,
which contained the following statement:
"1. We refer to our various emails and letters to you and the numerous
documents recently filed by or on behalf of Mr Ndlovu [our reference to
the appellant].
10
2. We have reviewed these documents carefully; however, their purpose are
unclear. Please could you clarify the nature and intended effect of these
files. In particular it is unclear as to the reason the transcript of the
argument before the court a quo has been filed.
3. It appears to us that the requirements of rule 7(2), rule 49(7)(a), and rule
49(13) have yet to be satisfied.
4. We would be grateful to receive your response to the matters raised
above by no later than Friday 29 November 2024 to enable our client to
determine the appropriate next steps in the matter.
5. We again record the prejudice being occasioned to our client by the failure
to properly prosecute this appeal ...
6. Our client's rights are reserved".
[12] Included in the plethora of documents contained in that bundle was an application
for a hearing date. The application for a hearing date for the appeal, which is made
in terms of rule 49(6)(a), must be made within 60 days after delivery of a notice of
appeal. That means that the Applicant's application for a hearing date should have
been made by no later than the end of March 2025 (if it is accepted that the notice
of appeal could have been filed on 22 January 2025 and not 3 December 2024).
Therefore, even if it is accepted that the Applicant's late notice of appeal could be
condoned at that stage (which it cannot, because there was no condonation
11
application filed yet) the appeal was then deemed to have lapsed by virtue of the
provisions of rule 49(6)(a)(iii).
[13] Not only did the Applicant fail to apply for an appeal date timeously, but failed to
furnish security when obliged to do so. In terms of rule 49(7)(a)(i) the Applicant
had to deliver a record of the appeal simultaneously with his application for a date
for the hearing of the appeal. That record must comply with Rule 49(8). This he
also failed to do. To date hereof there is no record that complies with rules 49(8)
and/or 49(b). The Caselines record of this matter can only be described as
bewildering. There are more than 50 different items uploaded onto Caselines, in
no logical sequence, and which cannot by the wildest stretch of the imagination
be described as an appeal record. Attempting to navigate these documents to
make sense of what is relevant for purposes of this application is impossible. This
confusing state of the documents uploaded onto Caselines is caused inter alia
by the fact that the Applicant uploaded various bundles of "evidence" consisting
of documents which the Applicant purportedly seeks to introduce as new evidence
in the lapsed appeal, and numerous individual affidavits and notices not filed in
any logical sequence.
[14] The notice of motion dated 29 July 2026 referred to above has no supporting
affidavit. At the bottom of that notice the following appears:
"Take notice further that the Appellant will rely on the existing founding and
confirmatory affidavits, the combined applications and annexures, the Appellant's
12
replying and supplementary affidavit, the filed appeal record and such legal
submissions as may be permitted".
[15] It appears that the Applicant requires this Court to trawl through "existing founding
and confirmatory affidavits", and various other documents, none of which are
clearly and/or individually identified, and the relevance of which do not readily
appear to find support for the various different orders sought in the notice of
motion.
[16] In summary, the application for reinstatement stands to be considered against the
following facts:
[16.1] Applicant failed to comply with any of the procedural steps envisaged
in rule 49(2), rule 49(6), rule 49(7), rule 49(8) and/or rule 49(9);
[16.2] Notwithstanding the fact that the Respondent's attorney of record
addressed repeated correspondence to the Applicant's attorneys of
record on the issue of non-compliance, the non-compliance was not
cured timeously, and in some instances, at all;
[16.3] The application for reinstatement consists of an amended notice of
motion as quoted above, which requires this court to troll through
various unspecified (and seemingly unrelated) affidavits, in an attempt
to make sense of the contents thereof, for purposes of that application.
13
[17] The first occasion that the Applicant attempted to provide reasons for his
persistent failure to comply with the relevant rules is contained in an affidavit dated
29 July 2026. This affidavit serves to state that the attorney who assisted the
Applicant in the preparation for the intended appeal left practice resulting in no
other person in that practice timeously filling his position. This affidavit, however,
does not explain in the required manner why the application for reinstatement was
only brought during July 2026, why there is no proper record before this court,
and why every required step which the Applicant had to undertake in terms of the
provisions of rule 49 to properly and timeously prosecute the appeal, was not
complied with. In Uitenhage Transitional Local Council v South African Revenue
Service 3 it was held as follows:
"[6] One would have hoped that the many admonitions concerning what is required
of an applicant in a condonation application would be trite knowledge among
practitioners who are entrusted with the preparation of appeals to this Court:
condonation is not to be had merely for the asking; 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 Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at paras
6 to 7.
14
[7] The appellant's affidavit consists of a number of generalized causes without any
attempt to relate them to the timeframe of its default or to enlighten the Court as
to the materiality and effectiveness of any steps taken by the appellant's legal
representatives to achieve compliance with the Rules at the earliest reasonable
opportunity."
[18] The Applicant's affidavit dated 29 July 2026 referred to supra squarely falls into
the category of affidavit described by the Supreme Court of Appeal in the
judgment as quoted above. The absence of a proper appeal record in this matter
caused substantial inconvenience to this court as well as to the Respondents.
Numerous documents had to be searched for while attempting to rely on a
confusing index to try and make sense of what the court is called upon to
adjudicate.
THE COURT'S APPROACH TO AN APPLICATION FOR THE REINSTATEMENT OF
AN APPEAL:
[19] In United Plant Hire (Pty) Ltd v Hi/1s4 the principles upon which a court exercises
a discretion to reinstate an appeal that has lapsed were stated as follows:
"ft is well-settled that, in considering applications for condonation, the court has a
discretion, to be exercised judicially upon a consideration of all the facts; and that in
essence is a question of fairness to both sides. In this inquiry, relevant considerations
4 United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 {A) at 720£-G.
15
may include the degree of non-compliance with the rules, the explanation therefore, the
prospect of success on appeal, the importance of the case, the Respondent's interest in
the finality of his judgment, the convenience of the court, and the avoidance of
unnecessary delay in the administration of justice. The list is not exhaustive".
[20] In Van Wyk v Unitas Hospita/5 these principles were restated in the following
terms:
"This court has held that the standard for considering an application for
condonation is the interests of justice . Whether it is in the interests of justice to
grant condonation depends on the facts and circumstances of each case. Factors
that are relevant to this inquiry include but are not limited to the nature of the relief
sought, the extent and cause of the delay, the effect of the delay on the
administration of justice and other litigants, the reasonableness of the explanation
for the delay, the importance of the issue to be raised in the intended appeal and
the prospect of success".
[21] In my view, considering the authorities referred to above, the Applicant has failed
to satisfy this court that it is in the interests of justice that the appeal be reinstated.
To arrive at this conclusion, the following considerations are relevant:
5 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as amicus curiae) 2008 (2) SA 472 (CC) at 477A-B.
[21.1]
[21 .2]
[21 .3]
[21.4]
[21 .5]
16
There was non-compliance with every procedural step in terms of Rule
49, both in substance and time; non-compliance with time periods was
substantial, repetitive and not explained in any rational manner.
There is no proper record which can assist this court, and no rational
explanation was provided why a compliant record was not prepared;
On an analysis of the Applicant's arguments advanced during the
hearing, there is no prospect of success on appeal;
This is not a matter which raises important points of law, nor is it in the
public interest that any of the issues raised by Applicant should be
resolved. The matter concerns an asserted personal entitlement to the
payment of dividends based on alleged shareholding of the Applicant
in a deregistered entity:
Should the application for reinstatement be granted, Applicant intends
to proceed with an application to adduce substantial further evidence,
which is doomed to fail. That issue was the focus point of the
Applicant's address to this court during the hearing of the matter. An
analysis of the Applicant's argument in that regard discloses that the
Applicant now attempts to correct his failure to address material issues
raised by the Respondents in their answering affidavit properly, at the
first instance, which he ought to have dealt with in his replying affidavit.
-
CONCLUSION:
17
When confronted with factual disputes, Applicant boldly replied that
they were irrelevant but now seeks to address those disputes with new
evidence. That approach offend·s the principle of the finality of
judgments.
In my view, the application for reinstatement should be refused with the result that the
remainder of the relief sought in the amen-ded notice of motion as quoted above becomes
moot.
The following order is made:
1. The application for reinstatement of the lapsed appeal is dismissed.
2. Applicant is ordered to pay th.e costs, costs of counsel to be taxed on Scale C.
PA VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION, PRETORIA
N BAMJ
•
I agree
It is so ordered
APPEARANCES
FOR APPLICANT:
INSTRUCTED BY:
FOR RESPONDENTS:
INSTRUCTED BY:
•
18
In person
Adv AW Pullinger
Webber Wentzel