IN CHAMBERS
BHUNU
JA: This is a rather convoluted
chamber application with no clear cut basis or rule of law upon which it is founded. The application was filed as a chamber
application for reinstatement of the lapsed appeal under case number SC 209/04
but ended up as an application for condonation of late noting of appeal.
There being no clear cut
basis for the procedure adopted by applicants, counsel for the applicants
resorted to inviting the court to depart from the rules and adopt uncharted
procedures in terms of r 4 of the Supreme Court Rules to advance their own
purpose. The rule authorises a judge in
appropriate cases to depart from the rules in order to do justice between the
parties. It provides that:
“Subject to the
provisions of subsection (3) of section 19 of the Act, a judge or the court may
direct a departure from these rules in any way where this is required in the
interests of justice and, additionally or alternately, may give such directions
in matter of practice or procedure as may appear to him or it to be just and
expedient”
In his main written
submissions Mr Toto counsel for the
applicants sought to explain and justify their admitted tardiness and flagrant
disdain of the rules in the following vein:
“A CONDONATION
The court is asked
for indulgence in terms of rule 4 of the SC rules whereon the court can use its
inherent powers to depart from the Rules in the interest of justice and to
control its own proceedings to achieve justice.
The court is asked to condone the tardiness inherent in the following
papers filed of record:-
i.
This
matter has taken too long to conclude and justice demands that it be put to rest
in (one) way or the other which does not include a dismissal of this
application on account of non-compliance with the rules.
ii.
Considering
that this application is made for the reinstatement of the appeal supposedly
pending in this court it is submitted that:
1.
THIS
APPLICATION WAS MADE WITH THE INITIAL IMPRESION THAT:
a)
There
was an appeal pending before this court that has been struck off the roll.
b)
After
which efforts were made to find the Supreme Court record which was only
retrieved from the Archives.
c)
In
an effort to comply with the High Court Civil Appeal Rules but erroneously so,
a letter dated September 30, 2015 was written to the High Court Registrar
(Tendered hereto), causing the preparation of the High Court record.
d)
Applicants'
files were also still sitting at various law firms and the proper and adequate
briefing was difficult from applicants who are lay people.
e)
Be
that as it may, it came to the attention of counsel that the appeal had in fact
lapsed and it required revival.
f)
However,
in terms of the Appeal Rules and the law, prior to making this application,
there must have been the need to apply to this court or a judge for condonation
before such an appeal can be reinstated because technically there is no appeal
pending. See case of:-
Bobby
Maparanyanga versus Dean Pernell Van Schakwyk SC 64/02
g)
As
a result of this history and lapse of time over the years and the failure by
applicant to access legal counsel, it is necessary that an application is made
to regularise applicant's papers.
h)
The
court is asked to condone the applicants for their conduct that led the Appeal
to lapse. Accordingly the court is asked
to condone the applicants by exercising its inherent powers to achieve the
interests of justice and finality of this matter by allowing applicants to
lodge the appeal out of time and to effectively grant an order to the effect
that:
i.
Failure
to file the appeal in terms of the rules is condoned.
ii.
Applicants
are ordered to file the appeal with the Registrar of the SC within 7 days from
the date of this order.
iii.
Applicants
must comply with the Appeal Rules of this court to the extent of causing the
preparation of the court record as a matter of priority within 21 days from the
date of this order.”
From the applicants' own summation of their irregular
and improper prosecution of the intended appeal I discern a deliberate disdain
of the rules.
I observe in passing that the tardiness with which
this matter is being handled betrays a woeful lack of diligence and serious
resolve to bring the matter to finality.
Despite the inordinate delay spanning more than 11 years both counsel
appeared without filing written heads of argument. They however promised to file written heads
of argument later that day particularly to address the novel objection raised by
Mr Mahlangu that an application for
reinstatement of a lapsed appeal ought to be brought by way of a court
application and not by chamber application.
Mr Mahlangu
promptly filed his heads of argument on the same day 12 November 2015. To date more than 8 months later Mr Toto has not filed his heads of
argument. Mr Mahlangu has since written to the Registrar requesting
judgment. I therefore proceed to
determine this matter without the benefit of Mr Toto's written heads of argument.
The application is against the judgment of Makarau J,
as she then was. In that judgment the
learned judge dismissed the applicants' application to set aside a consent
judgment. The judgment was delivered on
16 June 2004 more than 11 years ago.
The brief facts are that on 26 November 2002 the court
a quo entered a consent judgment
against the applicants in the sums of US$590 470.68 and US$54 917.68 together
with interest. Having consented to
judgment the applicants who were legally represented later on had a change of
heart and approached the court a quo
seeking an order setting aside the consent order in terms of r 56 of the High
Court Rules 1971. The application found
no favour with the learned presiding judge who dismissed the application with
costs on 16 June 2004.
Aggrieved by the determination the applicants noted an
appeal to this court on 1 July 2004 under case number SC 209/04. The applicants however did not prosecute
their appeal as expected. They sat back
and did nothing until the appeal lapsed or was deemed to have been abandoned in
terms of r 25(1)(c).
About 11 years later and on 12 October 2015 the
applicants filed this chamber application seeking condonation and reinstatement
of the long forgotten appeal. The record
of proceedings had to be retrieved from the archives where it was now gathering
dust.
The appeal having lapsed or deemed to have been
abandoned it follows that there is no appeal pending in this court. This prompted the applicant to apply for
condonation of late filing of the notice of appeal together with the
application to reinstate the lapsed or abandoned appeal.
The application for reinstatement of the appeal was
however initially brought without the necessary application for condonation of
late filing of appeal. The application
was only belatedly made at the hearing as an afterthought. It was not accompanied by the necessary
request to amend the draft order to incorporate the envisaged amendment.
The respondent has raised 2 points in limine.
1. That
the matter is not properly before me as the applicant ought to have proceeded
by court application and not by chamber application.
2. That
the applicants' failure to comply with rule 34 of the Supreme Court Rules
renders the application a nullity.
The objection in paragraph 1 above brings into question
the propriety of bringing an application for reinstatement of a lapsed appeal
by way of a chamber application rather than a court application. I now proceed to ventilate that issue.
Whether an Application for
Reinstatement of Appeal Can be Brought By Way of a Chamber Application.
In its objection in limine the respondent sought to rely
on r 26 (1) of the Supreme Court Rules 1964 which provides that:
“26. Applications
(1)
All
applications, other than an application for leave to appeal, for extension of
time in which to perform any act or for legal aid, shall be made by
court application.”
The rule clearly
stipulates that all applications except those specifically mentioned in r 26 shall
be brought by way of court application.
There are only 3 exceptions specifically mentioned in the rule. That is to say:
1. Application
for leave to appeal.
2. Application
for an extension of time in which to perform any act.
3. Application
for Legal Aid.
The application for
reinstatement of an appeal not being one of the above 3 exceptions mentioned in
r 26 (1), it would appear on the face of it that the law requires that such an
application be brought by way of a court application and not as a chamber
application.
A closer analysis of the
rules however shows that r 26 falls under Part IV which exclusively deals with
criminal appeals from the High Court as will more fully appear from the heading
which reads:
“PART IV
CRIMINAL APPEALS FROM THE HIGH
COURT”
Rule 26 therefore, has no application in civil appeals
in this court. This being a civil appeal
from the High Court it follows that the rule has no application in this case.
There is no corresponding rule under Part V which
deals with civil appeals from the High Court.
Consequently the objection is misplaced and unsustainable as it is
premised on an inapplicable rule of court.
The objection is accordingly overruled.
Turning to the objection of failure to comply with r
34, the rule requires an appellant to pay for the preparation of the record or
make an acceptable written undertaking to pay to the Registrar unless he is
suing in forma pauperis. It reads:
“(1) the
appellant, unless he has been granted leave to appeal in forma pauperis shall, at the time of the noting of an
appeal in terms of rule 29 or within such period therefrom, not exceeding five
days, as the Registrar of the High Court may allow, deposit with the said
Registrar the estimated cost of the preparation of the record in the case
concerned:
Provided that the Registrar of the High
Court may, in lieu of such deposit,
accept a written undertaking by the appellant or his legal representative for
the payment of such cost immediately after it has been determined.”
Counsel for the
applicant stated from the bar that the rule had been complied with. The applicant's founding affidavit does not
however deal with the issue and no proof of payment or written undertaking to
pay was furnished. The applicant was
therefore unable to discharge the onus of proving compliance with r 34.
The rule is couched in
peremptory terms. Once the issue of
non-compliance had been raised it was incumbent upon the applicant to furnish
proof of compliance with the rule. This
the applicant did not do.
Rule 34 provides a
penalty for non-compliance under sub rule (5) which provides that:
(5) if the appellant fails to comply with
the provisions of subrule (1), or any written undertaking made in terms of the
proviso to that subrule, the appeal shall be deemed to have lapsed unless a
judge grants relief on cause shown.
The applicant apart from his mere say so has not
furnished any proof of compliance with the mandatory provisions of r 34.
The applicants' failure to provide proof of compliance
leads to the inexorable conclusion that they did not comply with the mandatory
provisions of r 34. No explanation has been furnished for their failure to
furnish proof of compliance. In the
absence of any plausible explanation I cannot grant them relief for the
flagrant disdain of the mandatory rule of court. The conclusion that there is no valid appeal pending
before this court is inescapable in light of the applicant's own admission to
that effect. That finding has fatal
consequences to the applicants' application.
The applicants' shoddy attempt to resurrect a dead
case eleven years after the event is despicable and deserves censure. The need to have finality to litigation cannot
be over emphasised. It appears that this
application has been filed merely to delay the date of reckoning. I am unable, and loath, to render assistance
in that regard.
The courts' displeasure with the growing tendency
among some legal practitioners to handle applications of condonation of failure
to comply with the rules with disdain was amply articulated by Ziyambi JA in Apostolic Faith Mission in Zimbabwe and 2
Ors v Titus Innocent Murefu SC 28/03.
In that case the learned judge had occasion to restate the words of
Steyn CJ in Saloojee and Anor v Minister
of Community Development 1965 (2) SA 135E, where the learned Chief Justice
had this to say:
“It is necessary once again to emphasise
as was done in Meintjies v H.D. Combrinck
(Edms) Bpk, 1961 (1) SA 262 (AD) at p 264.
That condonation of the non-observance of the rules of this court is by
no means a mere formality. It is for the
applicant to satisfy this court that there is sufficient cause for excusing him
from compliance, and the fact that the respondent has no objection is, although
not irrelevant, is by no means an overriding consideration.”
It is needless to say
that the applicants have dismally failed to discharge the onus of proving that
there is any justifiable reason for excusing them from the natural consequences
of their deliberate disdain of the rules of court 11 years after the event.
The respondent has been
put to unnecessary expense long after the matter had been put to rest by the
courts. The application appears to be a
delaying tactic in a futile attempt to delay the course of justice. It is only fair that the respondent should
recoup its costs at the highest scale.
It is accordingly
ordered that the application be and is hereby dismissed with costs on the
attorney client scale.
T. A. Toto Attorneys, applicants'
legal practitioners
Gill, Godlonton & Gerrans, respondent's legal
practitioners
