- August 25, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PRACTICE – CONDONATION OF LATE FILLING OF COMPLETE RECORD FILED 1 ½ YEAR LATE
In this matter, the Supreme Court dealt with an application for condonation for the filing of an incomplete record. The appellant explained that despite relentless attendance to the offices of the transcription service providers in an attempt to obtain the missing part of the record, the transcribers were unwilling to assist satisfactorily therewith, as a result, a complete record was filed about one and a half years late. The missing parts of the record surfaced miraculously after a letter from the registrar of the Supreme Court addressed to the appellant’s legal representatives was presented to the transcription service provider. No explanation was provided, by way of a supporting affidavit by the transcription service providers, why the recordings were not discovered earlier if the recordings had always been on the trial court’s storage devices.
The Court found that the non-compliance with the rules was glaring, inexplicable, not rational and unpersuasive. The court on the strength of the explanation for failure to file a complete record was left unanswered, which circumstances made the court unable to understand how it really came about and to assess appellant’s conduct and motives. It further found the deponent to appellant’s founding affidavits in respect of his involvement in the trial proceedings or otherwise, contradicted himself, not frank with the court, which in turn negatively affected the bona fides of the application.
It is incumbent upon an applicant in a condonation application, where it appears that part of the record is missing, to reconstruct the missing part or at least attempt to do so, where it is possible, in order to comply with his or her obligation to file a complete appeal record. No issue of public importance arose which could have tilted the balance in favour of granting condonation. In the circumstances, it is not necessary to consider the prospects of success on the merits.
As a result, the condonation and reinstatement application was refused.
Solsquare Energy (Pty) Ltd v Luhl 25 August 2022