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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: A291/2020
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
2 September 2026
SIGNATURE
In the matter between:
MOHAMMED FARID ABDEL WAHAB Applicant
and
MINISTER OF POLICE First Respondent
MINISTER OF JUSTICE Second Respondent
The judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the parties’ legal representatives
by e-mail and uploading it to the electronic file of this matter on Caselines. The date
and time of hand-down is deemed to be 17:00 on 2 September 2026.
2
JUDGMENT
CP Wesley, AJ
[1] This is the judgment in an opposed motion that was argued before me on 3
August 2026, after which I reserved judgment.
[2] The applicant is Mr Mohammed Farid Abdel Wahab (“Wahab”). The first and
second respondents are the Minister of Police and the Minister of Justice
respectively (collectively “Ministers”).
[3] The relevant facts are as follows. On 8 August 2016 Wahab instituted an
action in this court against the Minister s. In the action Wahab claimed the
payment of damages for his alleged unlawful arrest and detention , and for
malicious prosecution. Pursuant to a ruling that was made by the honourable
Madam Justice Molefe in terms of Uniform Rule 33(4), at the commencement
of the trial and by agreement between the parties , the trial proceeded before
her on the issue of the merits only, with the issue of the quantum being held
over for later determination (if necessary).
[4] In a judgment and order that was granted on 20 November 2019, Molefe J
dismissed the action with costs. Wahab was dissatisfied with the outcome of
the action and in December 2019 he duly applied for leave to appeal.1
[5] On 3 August 2020 Molefe J dismissed Wahab’s application for leave to appeal
with costs.
1 The notice of application for leave to appeal does not reflect a day in the date.
3
[6] Still dissatisfied, on 11 September 2020 Wahab applied to the Supreme Court
of Appeal for leave to appeal . In an order dated 7 December 2020 the
Supreme Court of Appeal granted Wahab leave to appeal to the Full Court of
this Division. The order that was made was in the following terms:
“1. Leave to appeal is granted to the Full Court of the Gauteng Division of the
High Court of South Africa, Pretoria.
2. The costs order of the court a quo in dismissing the application for leave to
appeal is set aside AND (sic) the costs of the application for leave to
appeal in this court and the court a quo are costs in the appeal. If the
applicant does not proceed with the appeal, the applicant is to pay these
costs.”
[7] As conveniently summarised in Aymac CC & Another v Widgerow ,2 according
to the rules that govern the appeal, the following ought to have occurred once
leave to appeal had been granted:
[7.1] Wahab had to deliver a notice of appeal to the Ministers within
twenty court days after the date upon which leave to appeal was
granted (Uniform Rule 49(2)).
[7.2] Within sixty court days3 after delivery of the notice of appeal, Wahab
had to make written application to the Registrar of this court for a
date for the hearing of the appeal (Uniform Rule 49(6)(a)).
[7.3] If Wahab failed to do so, the Ministers could within ten court days
thereafter apply for the set down of the appeal ( Uniform R ule
49(6)(a)).
2 [2008] JOL 21738 (W); 2009 (6) SA 433 (W) at para 3.
3 The period of sixty court days is, in the North and South Gauteng High courts, a period of three
months: see Transvaal Rule 6(1).
4
[7.4] If no such application was made by any of the parties , the appeal
would be deemed to have lapsed, and the Ministers would have the
right to apply for an order for their wasted costs ( Uniform R ule
49(6)(a)).
[7.5] At the same time as the application for a date for the hearing of the
appeal in terms of Uniform Rule 49(6)(a), Wahab had to:
(a) file three copies of the record with the Registrar ( Uniform
Rule 49(7)(a));
(b) furnish two copies of the record to the Ministers (Uniform
Rule 49(7)(a)); and
(c) file a power of attorney with the Registrar authorising his
attorney to appeal (Uniform Rule 7(2)).
[7.6] If Wahab neglected to file or furnish the copies of the record within
forty days after the Registrar’s acceptance of the application for a
date for the hearing of the appeal, the respondent could approach
the court for an order that the application (for a date for the hearing
of the appeal) had lapsed (Uniform Rule 49(7)(d)).
[7.7] After delivery of the copies of the record, the Registrar had to assign
a date for the hearing of the appeal, and set the appeal down for
hearing on that date , giving at least twenty days’ notice thereof
(Uniform Rule 49(7)(c)).
[8] On 15 December 2020 Wahab noted an appeal to the Full Court. As
indicated, in terms of Uniform Rule 49(6) (a) Wahab had sixty court days (or
three months) from 15 December 2020 to apply in writing to the registrar of
this court for a date for the hearing of the appeal.
5
[9] According to the Wahab, the appeal record was obtained on 6 July 2021.
Counsel then prepared heads of argument, a practice note, a chronology
and a bibliography. These were provided to Wahab’s attorneys at the time
(“first attorneys ”) on 13 December 2021 , who reviewed them and found
them to be satisfactory. Wahab’s first attorneys then provided the documents
to him and on 14 December 2021 he likewise reviewed them and found them
to be satisfactory.
[10] It appears that the record was uploaded onto Caseline on 11 March 2022.
The papers do not show if, or when, Waha b filed file three copies of the
record with the Registrar ( as per Uniform R ule 49(7)(a)); furnished two
copies of the record to the Minister of Police and the Minister of Justice (as
per Uniform R ule 49(7)(a)); or filed a power of attorney with the Registrar
authorising his first attorney to appeal (as per Uniform Rule 7(2)).
[11] On 31 March 2022 Wahab’s first attorneys applied in writing to the Registrar
of this court, on notice to the other parties, for a date of hearing the appeal. By
that time the appeal had already lapsed some two years before, as per
Uniform Rule 49(6)(a).
[12] On 6 May 2022 the appeal was set down for hearing by th e Full Court, to be
heard on 1 7 May 202 3. It must be noted that t he fact that the Registrar
assigns a date for the hearing of the appeal that has lapsed for non -
compliance with the applicable requirements does not mean that those
requirements have been waived.4
[13] On 15 May 2023 the appeal was removed from the roll for hearing on 17 May
2023 by way of a notice that was delivered by Wahab’s first attorneys.
According to Wahab, this happened because of a “dispute regarding
payment”. Wahab did not explain the nature and outcome of the dispute ,
4 See Nawa v Marakala 2008 (5) SA 275 (B).
6
which he said was not relevant to the pro ceedings, nor furnish any evidence
in support of his submissions about same.
[14] On or about 4 September 2023 Wahab appointed new attorneys (“second
attorneys”) to further his appeal . Wahab was then in Egypt from 11
September 2023 to 11 March 2024 for purposes of receiving medical
treatment. According to Wahab, the second attorneys took no steps to further
his appeal in this time.
[15] On 12 June 20 24 Wahab terminated his second attorney’s mandate and
started looking for new attorneys. On the same day Wahab appointed his third
attorneys (“third attorneys”).
[16] On 22 August 2024 Wahab’s third attorneys apparently discovered that the
evidence of two witnesses, Mr JH Pauley (“Pauley”) and Detective Warrant
Officer G Henning (who is referred to as Sargeant Henning on the papers)
(“Henning”) was missing from the appeal record.
[17] On 13 September 2024 Wahab’s third attorneys contacted the company that
had recorded and transcribed the evidence at the trial about the missing
evidence of Pauley and Henning.
[18] On 24 October 2024 Wahab’s third attorneys contacted Wahab’s first
attorneys as well as the State attorney, asking if they had any notes of the
evidence given at the trial by Pauley and Henning.
[19] Also on 24 October 2024, Wahab’s first attorneys replied to his third attorneys
that they did not have any notes of the evidence given by Pauley and
Henning. Wahab does not explain what reply , if any, was received from the
State Attorney to the request that was made by Wahab’s third attorneys.
[20] On 4 November 2024 th e recording and transcribing company notified
Wahab’s third attorneys that the evidence of Pauley and Henning could not be
found.
7
[21] On 12 November 2024 Wahab consulted with his third attorneys, who advised
him to launch the present application.
[22] The present application was then launched by Wahab’s third attorneys on 2
April 2025. The relief that is sought in the notice of motion (as amended) is
the following:
[22.1] that any non-compliance with the Uniform Rules of Court or directives
of this court be condoned;
[22.2] that Wahab’s appeal be reinstated;
[22.3] that the matter be remitted to the trial court to convene a hearing in
open court for purposes of the reconstructing the record as far as the
evidence of Pauley and Henning is concerned;
[22.4] that the appeal be re -enrolled for a further hearing on an expedited
basis on request to the Deputy Judge President; and
[22.5] an order for costs if the application is opposed.
[23] Curiously, a second notice of motion seeking the same relief against the
Ministers but signed by yet further attorneys (“ fourth attorneys”) on 31 July
2025 appears on Caselines. There is no explanation for this.
[24] On the papers, Wahab explains that in its entirety he was in Egypt receiving
medical treatment during or about the following times: 18 January 2019 to 17
February 2019; 15 January 2020 to 8 March 2020; 3 September 2021 to 20
January 2022; 6 April 2022 to 15 September 2022; 15 January 2023 to 6 May
2023; 11 September 2023 to 11 March 2024; and 4 December 2024 to 21
March 2025. In support of this Wahab provided what are alleged to be copies
8
of pages from his passport, which are of a very poor quality, that purportedly
show the dates of his exits from and entrances into South Africa.
[25] The Ministers correctly point out that the corollary of the foresaid evidence is
that Wahab was in South Africa in between those times. This includes periods
between 16 September 2022 and 14 January 2023, 7 May 2023 and 10
September 2023, 12 March 2024 and 3 December 2024, and 22 March 2025
and following.
[26] The medical treatment that Wahab claims to have received in Egypt is
described by him as having entailed consultations with medical practitioners
such as ear, nose and throat specialists, an orthopaedic surgeon and a
cardiologist; the restructure (sic) of his nose channels; the restructure (sic) of
his upper and lower jaws; and bone replacements, structural restoration and
maintenance through dental implants.
[27] The evidence that is given by Wahab regarding the medical treatment that he
claims to have received in Egypt is self -evidently vague. It lacks any detail
regarding, for example, the nature of his condition; the type of treatment that
was prescribed and the treatment that he received ; the dates when he
received this treatment ; the recovery time s for the treatment; the medical
specialists and facilities that provided the treatment , and etc. This is
inexplicable. Wahab has also not put up any corroborating evidence regarding
this medical treatment , such as a medical report from a treating specialist,
before the court. This is also inexplicable.
[28] According to Wahab, whilst he was in Egypt receiving this medical treatment
he could not attend to day -to-day functions, let alone his appeal. Wahab does
not, however, explain what he did about his appeal whilst he was in South
Africa during the periods mentioned above.
9
[29] It is common cause that Wahab’s appeal has lapsed. This would have
happened during or about the first quarter of 202 1, upon the lapse of sixty
court days (or three months) after 15 December 2020.
[30] In the heads of argument that were prepared by Wahab’s counsel , it was
submitted that the first issue that arises for determination is whether Wahab
has made out a proper case for the reinstatement of his appeal. I agree. If this
relief is not granted, then the remainder of the relief that is sought by Wahab
will fall away. On the other hand, if this relief is granted, then the remainder of
the relief that Wahab seeks arises for consideration. Accordingly, I intend to
determine this issue first.
[31] Uniform Rule 49(6)(a) provides (as far as is applicable) that-
“[t]he court to which the appeal is made may, on application of the appellant … and
upon good cause shown, reinstate an appeal … which has lapsed.”
[32] The legal prescripts that apply where a party is applying for the reinstatement
of a lapsed appeal was again conveniently summarised in Aymac in the
following terms:
“[37] Rule 49(6)(b) permits this Court of appeal, on application and upon ‘good
cause shown ’ to reinstate an appeal which has lapsed. In an analogous
context, Holmes JA laid down the applicable principles as follows:
‘It 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 it is a question of fairness to both sides. In this
enquiry, relevant considerations may include the degree of non-compliance
with the rules, the explanation therefor, the prospects of success of appeal,
the importance of the case, the respondent's interest in the finality of his
judgement. The convenience of the court, and th e avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive.
10
These factors are not individually decisive but are inter -related and must
be weighed one against the other; thus a slight delay and a good
explanation may be held to compensate for prospects of success which
are not strong’ (United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (AD) at
720E–G).
[38] It is accepted that, whilst an appellant should not be prejudiced by his or
her attorney's incompetence, there is a degree beyond which a litigant
cannot be excused thereby. This was put as follows by Steyn CJ in
Saloojee & another NNO v Minister of Community Development 1965 (2)
SA 135 (AD) at 141C–E:
‘I should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the blame lies with
the attorney. 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. Considerations ad
misericordiam should not be allowed to become an invitation to laxity. In
fact this Court has lately been burdened with an undue and increasing
number of applications for condonation in which the failure to comply with
the Rules of this Court was due to neglect on the part of the attorney. 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 the
failure to comply with a rule of Court, the litigant should be absolved from
the n ormal consequences of such a relationship, no matter what the
circumstances of the failure are.’
… .
[39] Culpable inactivity or ignorance of the rules by the attorney have in a
number of cases been held to be an insufficient ground for the grant of
condonation (see PE Bosman Transport Works Committee & others v Piet
Bosman Transport (Pty) Ltd 1980 (4) SA 794 (AD) at 799B in fin; Rennie v
Bosman Transport (Pty) Ltd 1980 (4) SA 794 (AD) at 799B in fin; Rennie v
Kamby Farms (Pty) Ltd 1989 (2) SA 124 (AD) at 131I –J; Ferreira v
Ntshingila 1990 (4) SA 271 (AD) at 281G –282A; Blumenthal & another v
Thomson NO & another 1994 (2) SA 118 (AD) at 121C –122C). The
principle established by these cases is that the cumulative effect of factors
relating to breaches of the rules by the attorney may be such as to render
the application for condonation unworthy of consideration, regardless of
11
the merits of the appeal. The same principle would apply to applications for
reinstatement.
[40] There is a further reason why the court should not grant condonation or
reinstatement in the face of gross breaches of the rules. Inactivity by one
party affects the interest of the other party in the finality of the matter. See
in this regard Federated Employers Fire & General Insurance Co Ltd &
another v McKenzie 1969 (3) SA 360 (AD) at 363A in which Holmes JA
said the following concerning the late filing of a notice of appeal:
‘The late filing of a notice of appeal particularly affects the respondent's
interest in the finality of his judgment – the time for noting an appeal having
elapsed, he is prima facie entitled to adjust his affairs on the footing that
his judgment is safe; see Cairns' Executors v Gaarn 1912 AD 181 at p.
193, in which Solomon JA said:
“After all the object of the rule is to put an end to litigation and to let parties
know where they stand ”’ (see also Minister of Land Affairs & Agriculture &
others v D&F Wevell Trust & others 2008 (2) SA 184 (SCA) … at 199B–
D).”
[33] This court is of the view that this is a case where the cumulative effect of the
factors relating to the breaches of the rules, and times, that are applicable to
appeals, and the very poor explanation given for the breaches by Wahab,
mean that the application for reinstatement of Wahab’s appeal cannot
succeed.
[34] As indicated, Wahab’s appeal lapsed s ixty court days after 15 December
2020. The present application was only launched by Wahab’s third attorneys
on 2 April 2025 , or otherwise by his fourth attorneys on 31 July 2025. There
was thus a lapse of approximately five years , or more, between when
Wahab’s appeal lapsed and the lodging of this application. That is a
significant period time.
[35] Wahab’s explanation for the delay of the five years between when his appeal
lapsed and when this application was lodged is unacceptably thin. Wahab
lapsed and when this application was lodged is unacceptably thin. Wahab
has not substantiated the reasons for his absence from South Africa and his
12
alleged inability to deal with his appeal during those times, with corroborating
evidence. He has also not explained what steps he or his attorneys took to
further his appeal whilst he was otherwise in South Africa.
[36] It was argued strongly for Wahab that he should not be blamed for any
remissness of his first and second attorneys. This court does not agree. On
the facts as set out above, this court is of the view that this is a case where
Wahab should not be absolved from the normal consequences of the
remissness of erstwhile attorneys.
[37] In his founding affidavit Wahab submits that he has good prospects of
success on appeal. He says that this is evident from, first, the content of his
notice of appeal and, second, from the fact that the Supreme Court of
Appeal granted him leave to appeal.
[38] Concerning the first point, the Minister s contest Wahab’s grounds of appeal
as contained in his notice of appeal, and with the same fervour as Wahab
has arguing for them. This court cannot find that Wahab has shown that he
has good prospects of success on appeal simply on the basis of his notice of
appeal.
[39] Concerning the second point, this court cannot find that Wahab has good
prospects of success on appeal from the mere fact that the Supreme Court
of Appeal granted him leave to appeal. This is because the Supreme Court
of Appeal only granted an order for leave to appeal and not a motivated
judgment explaining the bases for the order. This court is thus not privy to
the thinking of the Supreme Court of Appeal in this regard.
[40] Taking the facts and the applicable legal prescripts into account, this court is
of the view that Wahab has not made out a case for the reinstatement of his
appeal.
13
[41] For the reason given, it follows that the remainder of the relief that is sought
by Wahab falls away.
[42] As a general principle the successful party is entitled to costs. 5 There is no
reason why the general principle should be departed from in this matter . In
accordance with Uniform R ule 67A(3)(a), and taking the factors under
67A(3)(b) into account, the costs shall be on Scale C.
[43] Unfortunately I must also address the following issue in this judgment . Just
before 11h30 on 3 August 2026, when the court intimated that it intended to
adjourn for tea at 11h30 and whilst advocate Phaswane was busy with his
argument for the Ministers, he replied that he was hoping to continue with his
argument because he was briefed in another matter that was standing down
while he attended to the matter before me. The court nevertheless adjourned.
[44] After argument was concluded I asked Advocate Phaswane to elaborate o n
his utterances as above. Advocate Phaswane candidly told me that in addition
to being briefed in the present matter before me for this week , 3 to 7 August
2026, he was briefed in a trial in this court between one Betty S eipei, the
plaintiff, and the Minister of Police, the defendant, under case number
3928/2018, which was set down for hearing on 3 to 14 August 2026. Advocate
Phaswane told me that this trial was standing down for him , while he was
attending to the present opposed motion before me.
[45] It is evident from what Advocate Phaswane has told the court that he could be
guilty of double briefing in contravention of Rule 2.4 of the Uniform Rules of
Professional Conduct , and Paragraph 28.9 of the Code of Conduct for All
Legal Practitioners and Juristic Entities, 2019. The court accordingly directed
Advocate Phaswane to report himself to the Legal Practice Council in writing
regarding this issue , within 10 days from 3 August 2026, and to copy the
report to the court’s Registrar by way of email to a given email address. To his
report to the court’s Registrar by way of email to a given email address. To his
5 Fripp v Gibbon & Co 1913 AD 354 at 357.
14
credit, Advocate Phaswane has by the date of this judgment acted
accordingly.
[46] The court will also direct the Registrar to bring this judgment to the attention of
the Chairperson of the Pretoria Society of Advocates, by way of email to m[...].
[47] In the result, the following order is made:
1. The application is dismissed.
2. The applicant is to pay the costs of the respondents on a party and
party basis, and on Scale C.
15
3. The Registrar is directed to bring this judgment to the attention of the
Chairperson of the Pretoria Society of Advocates, by way of email to
m[...].
_________________________
CP WESLEY, AJ.
Acting Judge of the High Court
Date heard: 3 August 2026.
Judgment date: 2 September 2026.
Appearance:
Applicant:
Counsel: AL Legong
Instructed by: Etienne Bedecker Inc
Respondents:
Counsel: MS Phaswane
Instructed by: State Attorney, Pretoria