- November 15, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PRACTICE – APPLICATION FOR CONDONATION AND REINSTATEMENT OF APPEAL – PRINCIPLES RESTATED
The appellants appealed against the order of the High Court in which the first appellant was ordered to pay the respondent an amount of N$550 000 with interest and costs, and in which the court a quo ordered the agreement between the parties dated 20 November 2012, as well as an addendum dated 31 March 2014, be canceled.
On appeal, the appellants brought an application in which they sought the condonation for the late filing of the appeal record as well as for an order reinstating the appeal which was deemed to have been withdrawn in terms of the provisions of rule 9(4) of the Rules of the Supreme Court. the application was opposed. The instructing counsel deposed an affidavit in support of the application and offered the following explanation for the late filing of the appeal record.
He explained that after the notice of appeal was filed, he was solely responsible for carrying out the remainder of the appeal processes. He stated that on 15 June 2020 he addressed a letter to the instructing counsel of the respondent in which he proposed payment of security for costs of the appeal in the amount of N$50 000. This was not acceptable and a counter-proposal of N$200 000 was made. The parties reached an impasse, and the matter was referred to the registrar in order to determine the amount of security to be paid. On 3 July 2020 security was fixed in the amount of N$144 900 which security was paid on 11 July 2020.
The deponent stated that on 20 July 2020 he commenced the ‘long and arduous task’ of going through the voluminous e-justice case file and the office case file in order to identify the documents required to be part of the appeal record. This process he completed on 29 July 2020, and he prepared a draft index which was forwarded to the respondent’s instructing counsel. On 31 July 2020, the index was accepted. The deponent expressed the view that he could not have commenced with the preparation of the index and the filing of the record of appeal until such time that the necessary security was established and paid into court. The deponent further explained that after the security was paid on 11 July 2020, he was unable to commence with the document identification process and the preparation of the index because he was engaged in trials and court martial in various towns outside Windhoek between 16 – 24 July 2020. The record and index were completed on 29 July 2020 and submitted same on 3 August 2020 to Hibachi Transcribers for typing, pagination, and binding. He collected the volumes on 19 August 2020 and filed them on the same day.
On 31 August 2020, he received a letter from the registrar informing him that the record reflect that the appellants had not complied with rule 8(2) in that up to then, no record of appeal was filed and further that the office of the registrar had not received any correspondence of consent as provided for by rule 8(2)(c). In light of these failures, he was informed that the appeal was deemed to have been withdrawn.
The deponent stated that according to his initial calculation the due date for filing the record of appeal was 21 August 2020. Counting from 5 May 2020 and due to the Covid-19 regulations and the Chief Justice’s Directives made thereunder, he assumed that there might have been an error of sorts on the part of the registrar and responded by informing the registrar that the record of appeal had already been filed on 19 August 2020. On 9 September 2020 the registrar served a letter on their offices in response to his letter of 31 August 2020, which according to him, he received on 14 September 2020, in which the registrar informed him that the last day for filing the appeal record was 6 August 2020. This was a shocking revelation to the deponent and upon recalculation, he realized that he miscalculated the last day for filing resulting in the appeal record being filled 13 days late.
The deponent stated that he did not even consider the procedure laid out in rule 8(2)(c) because he did not anticipate it would be required as in his mind he was still in time. The deponent unreservedly apologized and submitted that his non-compliance with the rules was not due to callous disregard for the Rules of this Court but as a result of human error and implored this court to accept his explanation as reasonable in the circumstances. In respect of the prospects of success on the merits, the deponent tabulated and discussed various misdirections of the court a quo concluding that there exist good prospects of success on appeal.
HOFF JA (MAINGA JA and SMUTS JA concurring) dealt with the appeal thus:
A litigant seeking condonation bears an onus to satisfy the court that there is sufficient cause to warrant the grant of condonation. The condonation application must be launched without delay as soon as a litigant becomes aware that there has been non-compliance with a rule or with rules.
The affidavit accompanying the condonation application must set out a ‘full, detailed and accurate’ explanation for the failure to comply with the rules. The court will also consider the litigant’s prospects of success on the merits, save in cases which demonstrate a ‘glaring and inexplicable disregard’ for the processes of the court.
The applicant failed to file the record of appeal within the time period prescribed by rule 8(2) of this court and failed to provide any explanation of what had happened for a period of about nine weeks after the notice of intention of appeal was filed. The applicant only started with the preparation of the appeal record after security for costs had been paid into court, which left the applicant with insufficient time to prepare and file the appeal record.
The applicant’s legal practitioner was familiar with the time within which to file the appeal record but failed in his duty as legal practitioner to apply the rule correctly by miscalculating the last day on which the appeal record had to be filed. No explanation was provided for what prompted the miscalculation.
The legal practitioner of the appellant failed to apply for condonation soon after he had been informed of appellant’s non-compliance with rule 8(2), by the registrar. The appellant also failed to apply for condonation for the failure to comply with the rule which requires a litigant to inform the registrar in writing that he or she had entered security for costs in spite of the fact that such non-compliance was brought to the attention of the appellant.
Held that:
- The explanation proffered was inexplicable, unpersuasive, and amounted to a negligent and unreasonable non-observance of the Rules of this Court.
- In respect of the prospects of success on the merits, it was found that there were no prospects of success on appeal in respect of the merits.
As a result, the application for condonation and reinstatement of the appeal was refused and the matter was struck from the roll with costs.
Shikongo v Lee’s Investments (Pty) Ltd (SA 33-2020) [2022] NASC (15 November 2022)