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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG

CASE NO. 10145/15

DATE: 01 APRIL 2016

METIER MIXED CONCRETE (PTY) LTD..........................................................................Applicant

And

DAX EDWARD GOOSE.......................................................................................................Respondent

JUDGMENT

CHETTY J

[1] This is an application in which the applicant seeks the following declaratory relief:

[1.1] That the appeal noted by the respondent, Dax Edward Goose under appeal 9/2012 in the Kwa-Zulu Natal High Court, Pietermaritzburg, in respect of the proceedings between the applicant and the respondent in the Magistrate's Court for the District of Pinetown, held at Pinetown under case 9329/2009, has lapsed and is of no force or effect;

[1.2] That the aforesaid appeal is no bar to the continuation of proceedings under s 65 of the Magistrates’ Courts Act 32 of 1944, or other execution against the respondent in respect of the Judgement of the Magistrate’s Court for the district of Pinetown, held at Pinetown, under case 9329/2009.

[1.3] That the respondent is ordered to pay the costs of this application on an attorney-client scale.

[2] The issues in this matter can be neatly crystallised into the enquiry as to whether the appeal noted by the respondent, but which he has failed to duly prosecute, has lapsed. The application is opposed by the respondent, who in essence adopts the stance that the application is defective and should be dismissed with costs. The opposition is based entirely on three technical defences, each of which are considered in turn below. The respondent contends that this application should properly serve before two judges, when the appeal on the merits is to be argued on 13 May 2016.

[3] A brief background to the matter is that the applicant sued the respondent on the basis of a suretyship agreement, on the basis of goods sold and delivered to the principal debtor. The matter proceeded to trial and judgement was granted on 1 June 2012 in favour of the applicant in the amount of R 89 525,17 together with interest from 31 October 2008 to date of final payment, and costs on an attorney-client scale.

[4] The respondent duly filed a notice on 28 June 2012 to appeal against the judgement. On 23 October 2012, the respondent delivered to the clerk of the court, Pinetown, an application for the allocation of a date for the hearing of an appeal. The applicant contends that this application for a date for hearing fell outside the 40 day period prescribed in terms of Rule 50 of the Uniform Rules of Court which provides that:

'(A)(a) The appellant shall, within 40 days of noting the appeal, apply to the registrar in writing and with notice to all other parties for the assignment of a date for the hearing of the appeal and shall at the same time make available to the registrar in writing his full residential and postal addresses and the address of his attorney if he is represented.

(b) In the absence of such an application by the appellant, the respondent may at any time before the expiry of the period of 60 days referred to in sub-rule (1) apply for a date of hearing in like manner.

(c) Upon receipt of such an application from appellant or respondent, the appeal shall be deemed to have been duly prosecuted.’

[5] The assignment of a date for hearing by the registrar is however subject to the following proviso in subrule 5(a), which states:

‘Provided that the registrar shall not assign a date of hearing until the provisions of subrute (7) (a), (b), and (c) have been duly complied with.’

[6] Subrule (7)(a) in turn provides:

The applicant shall simultaneously with the lodging of the application for a date for the hearing of the appeal referred to in subrule (4) lodge with the registrar two copies of the record: Provided that where such an appeal is to be heard by more than two judges, the applicant shall, upon the request of the registrar, lodge a further copy of the record for each additional judge.’

[7] It is not in dispute that on 21 May 2015 the respondent delivered the appeal record comprising three volumes together with an amended notice of appeal.

[8] In light of the above, the applicant contends that the appeal has lapsed in terms of Rule 50(4)fajt 50(4)(cJ and 50(7)faj read with Magistrates’ Courts Rule 51 (9) which provides that:

'a party noting an appeal or a cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary.’

[9] In Nawa & others v Marakala & another 2008 (5) SA 275 (BH) Landman J, in considering a similar application to that before me, held at para 14 that:

The fact that the registrar has provided a date for the hearing of the appeal, even though the first and second respondents failed to comply with their obligations, does not constitute condonation of their conduct. The registrar does not enjoy this power1.

[10] In Fedco Cape (Pty) Ltd v Meyer 1988 (4) SA 207 (E) at 209D it was held that it is for the court, and not the registrar, to decide whether the copies of the record on appeal comply with the Rules. A similar view was expressed by Cloete J in Francois v Baker; In re: Baker v Francois (A260/2012) [2013] ZAWCHC 71 (10 May 2013) with the court noting in para 5 that where the registrar allocated a date for the hearing of an appeal despite the appellant not having complied with Rule 50, that such steps taken by the register ‘do not remedy these fundamental defects since the registrar was not permitted, by virtue of the provisions of rule 50(5)(a), to have allocated any date at all.’

[11] The court went on to add in para 6 that the registrar is not empowered to grant condonation for non-compliance with the provisions of Rule 50

.. and that the inevitable result of the appellant’s disregard for the provisions of rule 50 is that she has failed to prosecute the appeal within the stipulated period of 60 days of the noting thereof as is required by rule 50(1), and the appeal has accordingly lapsed.’

[12] The respondent has not disputed that he applied for the assignment of a date for the hearing of the appeal outside of the 40 day time period prescribed in Uniform Rule 4(a). In addition, he filed the record some three years after the date when he should have. It is common cause that no application for condonation has been filed by the respondent to explain his lateness. In the interim, the applicant has since 2012, acting in the belief that the appeal has lapsed, attempted to execute and realise its judgment against the respondent. The applicant brought an application to have the respondent’s immovable property declared especially executable. This application was granted, only for the respondent to bring an application for rescission, which application has yet to be finalised. Having been unsuccessful in proceeding against the immovable property, the applicant turned its attention to the attachment of the respondent’s movable property. This enquiry resulted in a nulla bona return. Undeterred, the applicant then proceeded in terms of s65 of the Magistrates’ Courts Act.

[13] The s65 application was adjourned on several occasions, with the presiding officers' approach being that the s65A proceedings could not continue while the respondent’s appeal was still pending. It was suggested to the applicant during the course of the s65 proceedings in May 2015 that the applicant should approach this court for a declaratory order that the appeal has indeed lapsed. In the absence of such an order, it would appear that the applicant's attempts at execution ground to a halt.

[14] On 24 November 2014 the applicant’s attorneys wrote to the respondent’s attorney confirming that the s65 proceedings against the respondent had been set down for 3 December 2014. The applicant’s attorneys further advised that as the proceedings in the court a quo had not yet been transcribed, the respondent was required to bring a formal condonation application, failing which it held instructions to “apply to court to bar” the respondent, as the applicant was being severely prejudiced by the failure of the respondent to timeously prosecute the appeal. As set out earlier, the respondent has adopted the approach that it was not necessary to apply for condonation, and in an email to the applicant’s attorneys on 11 August 2015, it was suggested that the applicant reconsider its application to declare the appeal to have lapsed as this was a matter only for the appeal court to determine.

[15] The applicant has therefore brought the application to declare the appeal to have lapsed in order that it may proceed with the s65 proceedings against the respondent. The respondent raised three technical defences, the latter two of which involve an interpretation of the provisions of the Superior Courts Act 10 of 2013. With regard to the first point in limine challenging the authority of the applicant’s attorney to depose to the founding affidavit in this application, Mr Chetty who appeared for the respondent conceded that the appropriate manner to challenge the authority of the applicant’s attorney would be that set out in terms of Uniform Rule 7 (see Ganes <5 another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624G-1; Plettenberg Bay Country Club v Bitou Municipality [2006] 4 All SA 395 (C) at 398I-J; FirstRand Bank Ltd v Fillis & another 2010 (6) SA 565 (ECP) at 569C-G). This point was not pursued further by the respondent.

[16] The second and third points raised by the respondent may be dealt with collectively, as the arguments in respect of each leg, overlap. The respondent’s contention, as set out in his attorney’s email of 11 August 2015 is premised on the argument that as the appeal has been set down by the registrar of this court, before a full bench on 13 May 2016, and that this court constituted with a single judge has no jurisdiction to pronounce on the application. As I understood the argument, the issue of whether an appeal has lapsed or not, can only be determined by the appeal court assigned to hear the matter on 16 May 2016. The respondent relies on the provisions of s18 of the Superior Courts Act for the contention that whilst an appeal is pending, the operation an execution of the decision which is the subject matter of the appeal, remains suspended. Section 18(1) provides that:

'Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal'.

[17] I am of the view that this argument is misplaced. Firstly, s18 is intended to preserve or keep intact the decision being appealed against, to prevent a successful party in the court a quo from acting on the judgement, and thereby undermining the right of the dissatisfied party to challenge that decision on appeal. Accordingly, it is only in ‘exceptional circumstances’ that a court may allow the enforcement of a judgment pending the finalisation of an appeal (see Incubeta Holdings (Pty) Ltd & another v Ellis & another 2014 (3) SA 189 (GJ) para 22 where Sutherland J considered of what would constitute ‘exceptionality’). In L’Oreal South Africa (Pty) Ltd v Kilpatrick & another 2015 (6) SA 256 (LC) the court considered that the probability of ‘irreparable harm’ must be established to succeed in such an application (see also Actom (Pty) Ltd v Coetzer & another (A269/2015) [2015] ZAGPPHC 548 (31 July 2015)).

[18] Mr Boulle who appeared on behalf of the applicant, submitted and correctly so in my view, that s18 of the Superior Courts Act is of no relevance to the issues germane to this application. The applicant is not seeking to establish ‘exceptional circumstances’ as contemplated in s18. What it has done is to have attempted to execute in terms of the judgement in the court a quo in the belief that the

respondent’s appeal had lapsed because of his failure to prosecute the appeal within certain prescribed time periods. I am not persuaded by the respondent’s argument based on his interpretation of s18 of the Superior Courts Act.

[19] I now turn to the last point, that an application to declare an appeal to have lapsed must properly serve before a full bench, and most desirably, before the court duly constituted to hear the merits of the appeal. In this regard Mr Chetty submitted that the decision in Nawa & others (supra) was wrong, and threw his weight behind the ratio in Motsamai v Read & another 1961 (1) SA 173 (O) where Smit AJP held at 174D-E:

'It is much better for all parties concerned to let these matters, which are really all part of the proceedings on appeal, come before the Full Court of appeal rather than before a single Judge, who may by his refusal to grant relief, finally decide the issue between the parties. The Full Court can then, especially where there is argument on the merits, combine the hearing of the appeal with that of the application and so save costs. This, of course, does not apply to the case where a single Judge sits during vacation as he then exercises all the powers, jurisdiction and authority of a Court of such Division.'

[20] Landman J in Nawa however relied on the dictum in Lipschitz NO v Saambou- Nasionale Bouvereniging 1979 (1) SA 527 (T) where Eloff JP answered the question of whether an application to declare an appeal to have lapsed could be brought before a single judge. The court held at 529A-D that:

'Section 13(1)^ of the Supreme Court Act 59 of 1959 provides (subject to a proviso not relevant for present purposes) that the Court of a Provincial or Local Division shall, when sitting as a Court of first instance for the hearing of any civil matter, be constituted before a single Judge of the Division concerned. A Court entertaining an application under Rule 49(1) is in my view sitting as a Court of first instance. It was however contended that a practice exists whereby applications for condonation of procedural shortcomings in appeals are heard by a Court comprised of as many Judges as would constitute the Court of appeal. It is correct that the existence of such a practice was recognised in cases such as Meyer v Dowson & Dobson Ltd 1967 (4) SA 628 (T) at 628F, but I think that the scope of this rule of practice is limited to applications where the prospects of success have to be canvassed. It is understandable that in such cases the adjudication on the prospects of success should be undertaken by a Court comprised of as many members as will ordinarily hear the appeal. That consideration does not, however, necessarily enter into an application under Rule 49(1).'

[21] When the matter came before me, I brought to the attention of both parties unreported decision of Nicholls J in MCG Industries (Pty) Ltd v Chespak (Pty) Ltd (17527/10) [2013] ZAGPPHC 306 (22 October 2013) in which the applicant (MCG) contended that the appeal filed by the respondent (Chespak) had lapsed as it had failed to apply for a hearing date for the appeal within 60 days of the filing of its notice of appeal as required in terms of Rule 49(6)faJ. It also failed to file the record of appeal within the extended 40 day time period provided for in Rule 49(7)(rc0. Counsel for the applicant submitted that the issues in MCG Industries were distinguishable from those in the present application; in as much as the appellant had stated under oath in that case that it intended to apply for condonation. In the matter before me, the respondent adopted the view that if condonation had to be applied for, this would only be for the consideration of the appeal court and not before a single judge. In addition, MCG Industries was concerned with the provisions of Rule 49(7)(c0 as opposed to the provisions of Rule 50(1) which are applicable in the present application. As opposed to only seeking an order that the respondent’s application for a hearing date had lapsed, MCG perhaps erroneously sought order that the appeal itself had lapsed. It conflated the application contemplated in Rule 49(7) of an application for a date for the appeal to be heard, and the appeal itself. In dealing with the issue of whether it was appropriate for a single judge to hear an application to declare an appeal to have lapsed, Nicholls J said the following at para [21]:

This brings me to the question of whether this court sitting as a motion court with a single judge is the appropriate forum to hear the application for the lapsing of an appeal or whether this is a determination that should be made by the appeal court consisting of three judges. It is settled law that when the prospects of success have to be canvassed, then the correct forum is the bench that will hear the appeal. However where an application does not involve a consideration of the merits, this is not the sole domain of the appeal court and a single motion court judge would have the competence and jurisdiction to entertain such an application.' (footnote omitted)

[22] In MCG Industries the court took into account that the respondent had indicated that an application for condonation for the late filing of the record would be made at the hearing of the appeal. As any application for condonation would of necessity involve a consideration of the merits, the court noted it concluded at para [25] that:

‘In my view it is the appeal court when it hears the application for condonation that should determine whether the appeal has lapsed taking into consideration all the factors. This will include the impact of Chespak’s failure to file the record in the extended period allowed for in terms of Rule 49(7), as well as the prospects of success on appeal.’

[23] In contrast, in the matter before me, the respondent states the following in para 10 of his answering affidavit:

‘The respondent can in terms of law, if it believes that it has not complied with time limits, bring a condonation application to the full bench of this division to be heard at the same time as the appeal and it is for the full bench to decide that issue and not this court.’

[24] In furtherance of his approach set out above, the respondent relied on Rule 51(9) of the Magistrates’ Courts Rules, and in particular the words ‘unless the court of appeal shall see fit to make an order to the contrary.’ I am in agreement with the applicant’s counsel that this argument is misplaced in that a common sense interpretation of Rule 51(9) must mean that the failure to prosecute an appeal or cross-appeal in accordance with the prescribed time periods, results in such appeal or cross-appeal lapsing. It is only the appeal court that can resuscitate a lapsed appeal. While only the appeal court can hear an application to resuscitate an appeal that has lapsed, it does not follow that only an appeal court can declare an appeal to have lapsed.

[25] The enquiry as to whether an application to declare an appeal to have lapsed may be heard by a single judge, may be resolved by having regard to the framework of the Superior Courts Act. Section 14(1 )(a) of the Act provides that: ‘a court of a Division must be constituted before a single judge when sitting as a court of first instance for the hearing of any civil matter...’.Conversely, s14(3) provides that ‘a court of a Division must be constituted before two judges for the hearing of any civil or criminal appeal.’ In determining whether the application to declare the appeal to have lapsed must serve before a court of first instance comprising two judges, one may have regard to the principles of res judicata, and in particular the enquiry of whether such an application has already served before, and been finally determined, by another court. If the answer is no, then it is clear that the application must serve before a court of first instance, that being a court comprised of a single judge, unless directed otherwise by the Judge President or his/her Deputy. Conversely, if a court comprising a single judge is not the court of first instance to hear an application for the lapsing of an appeal, is not clear from the provisions of the Superior Courts Act which other court would be competent to hear the matter.

[26] I am accordingly of the view that the provisions of the Superior Courts Act are clear that a court of first instance is a court comprising a single judge, and that an application, such as that before me to declare an appeal to have lapsed, is indeed competent to serve before a single judge.

[27] The applicant considers that the respondent is ‘unapologetic’ in seeking to delay proceedings. Only at the hearing of this application did Mr Chetty indicate that the respondent intended to bring an application for condonation, and that he would ask for this application to be heard on the same day set down for the hearing the appeal. If this is indeed the position, it begs the question as to why the respondent steadfastly refused to give prior any indication that he intended to apply for condonation, and why he decided only at the hearing of this application to make known his intention. Quite correctly, a court sitting as a single judge cannot hear an application for condonation in relation to non-compliance with time periods for the prosecution of an appeal. As stated above, such an application would invariably involve an assessment of the merits, in that if there are no prospects of success on appeal, there would be little point in granting the application for condonation. That is, no application for condonation for the late filing of the record. The applicant on the other hand is seeking a declaration confirming what has already occurred as a matter of law, that the appeal by the respondent lapsed when he failed to timeously apply for an appeal date, as well as failing to file the appeal record. The declaration sought is a confirmation ex lege.

[28] The fact that the respondent has now indicated that he intends to apply for condonation should not constitute a barrier to this court pronouncing on whether the appeal, as a matter of law, has lapsed. If this court declares the appeal to have lapsed, it is open to the respondent to bring a substantive application for the appeal to be reinstated, and at the same time, bring an application for condonation for his failure to comply with the prescribed time periods. The appeal court would be in the best position to deal with all of those matters at one sitting.

[29] Lastly, apart from the declaration sought that the appeal has lapsed, the applicant further seeks an order that it is entitled to continue with proceedings under s65 of the Magistrates’ Courts Act, or other execution against the respondent in respect of its judgement secured in the Magistrate’s Court, for the district of Pinetown. I decline to make any order in this regard, as the applicant is at liberty to pursue any avenues open as a consequence of the relief granted below. Alternatively, it would be superfluous to grant the order prayed for in 1.2 of the Notice of Motion. In the absence of an order that the appeal has lapsed, it could be argued that to forge ahead with the section 65 proceedings in the Magistrate’s court would infringe on the provisions of section 18 of the Superior Courts Act. No argument was advanced on this aspect and it is not necessary say anything more in that regard.

[31] As regards costs, the applicant seeks costs against the respondent on attorney-client scale. In light of the intransigent approach adopted by the respondent to the applicant’s invitation to bring an application for condonation, which Mr Boulle indicated would have probably resulted in this application being resolved, I am satisfied that this is a suitable case where the respondent should be liable for costs on an attorney-client scale.

[32] In the result I make the following order:

a. The appeal noted by the respondent Dax Edward Goose in respect of the proceedings between the applicant and the respondent in the Magistrate’s Court for the District of Pinetown, under case number 9329/2009, has lapsed.

b. The respondent is to pay the costs of this application on an attorney-client

M R CHETTY

Appearances:

For the Applicant Adv, Boulle

Instructed by: Morris Fuller Walden William,

Westville Redfern & Findlay Attorneys,

Pietermaritzburg

For the Respondent: Mr. T Chetty of Theyagaraj Chetty Attorneys

Instructed by Care of Cajee Setsubie & Chetty

Pietermaritzburg

Date of Hearing: 18 February 2016

Date of Judgment 01 April 2016

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