- June 21, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant (Agribank) as the plaintiff obtained a judgment against the respondent as the defendant on 7 February 2018 declaring the respondent’s farm executable. This order had been given in respect of proceedings under rule 108 of the rules of the High Court and had followed an order made in October 2015 where a settlement agreement had been made an order of the court. The respondent/defendant was represented in both the proceedings which culminated in the settlement agreement made an order of court on 28 October 2015 and in the rule 108 proceedings on 7 February 2018.
The applicant proceeded to take steps to execute the order in its favour by issuing a notice of sale in execution of the farm with a sale scheduled for 24 April 2023. On 20 April 2023, the respondent filed a notice of appeal and an application for condonation for the late filing of that notice, the appeal record, and security for costs – more than five years after the impugned order had been granted and where the respondent was represented.
The application was brought by the applicant under section 14(7) of the Supreme Court Act 15 of 1990, read with rule 6 of the rules of the Supreme Court for the summary dismissal of the respondent’s appeal on the grounds that it is frivolous and vexatious or has no prospects of success, with costs of the said application. The applicant asserted that the grounds of appeal raised in the notice were devoid of merit and that the notice itself did not comply with rule 7 of the rules of the Supreme Court and that the appeal was frivolous, vexatious, and did not have any prospects of success.
The applicant served its notice of motion and founding affidavit on 23 May 2023 upon the respondent. Despite being called upon to file an answering affidavit under rule 6(3) within ten days of that service, no answering affidavit was filed by the respondent.
SMUTS JA was designated to determine the application, which he did as follows:
‘[5] Having been designated to determine the application under s 14(7) of the Act, I do so under rule 6(4)(a) in chambers on the notice of motion and founding affidavit and annexures seeing that the respondent has not seen fit to oppose this application and file an affidavit under rule 6(3) within the time period of ten days which has expired and has also not done so to date.
[10] The difficulty facing this application is that the notice of appeal was filed late – in this case more than five years late. Although the notice of appeal is accompanied by a condonation application for this failure to comply with rule 7, the failure to timeously note the appeal means that there is no appeal before this Court to be dismissed, unless and until condonation is granted and the appeal is reinstated (which was not even sought by the respondent in her condonation application).
[11] The failure to lodge a record within the required period and to find security also resulted in the lapsing of the appeal. There is thus no appeal pending before this Court which can be dismissed under s 14(7) read with rule 6, as has been emphatically confirmed by this Court in Ondjava Construction CC & others v HAW Retailers t/a Ark Trading 2010 (1) NR 286 (SC) para 5.
[12] If a notice of appeal has not been timeously filed or the appeal had lapsed by reasons of the failure to comply with the rules of this Court as provided by such rule, the respondent in that appeal, as is the case in this matter, is at liberty to execute the judgment or order obtained in its favour. The late filing of a notice of appeal even if accompanied by a condonation application cannot suspend execution. A party in those circumstances seeking to appeal would not be remediless and would be at liberty to seek an interim interdict to suspend execution pending the hearing of an application for condonation for the late filing of the notice of appeal but would be saddled with the onus of establishing prospects of success both on appeal and in respect of the condonation application in order to succeed with such an interlocutory interdict. In the absence of an order embodying such an interdict, execution can proceed.
[13] Given the frequency with which parties file late notices of appeal on the eve of execution in a bid to delay the execution, the registrar is directed to provide a copy of this judgment to the Director of the Law Society for the attention of its members who practice as instructing legal practitioners and to deputy sheriffs charged with the execution of judgments and orders.
It was, therefore, held that:
a) If a notice of appeal has not been timeously filed or the appeal lapses by reasons of the failure to comply with the rules of this Court as provided by such rule, the respondent in that appeal, as is the case in this matter, is at liberty to execute the judgment or order obtained in its favour.
b) The late filing of a notice of appeal even if accompanied by a condonation application cannot suspend execution. A party in those circumstances seeking to appeal would not be remediless and would be at liberty to seek an interim interdict to suspend execution pending the hearing of an application for condonation for the late filing of the notice of appeal but would be saddled with the onus of establishing prospects of success both on appeal and in respect of the condonation application.
As a result, the applicant’s application brought under section 14(7) of the Supreme Court Act 15 of 1990 read with rule 6 was dismissed by reason of the fact that s 14(7) was not applicable because there was no appeal before the court by reason of the late filing of the notice of appeal. As there was no appeal before the Court, there was no suspension of any judgment or order sought to be appealed against. There was no order as to costs made.