IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between
•

and

JUDGMENT

49(2) "If leave to appeal to the full court is granted the notice of appeal shall be delivered to all the parties within 20 days after the date upon which leave was granted or within such further longer period as may upon good cause shown be permitted.
49(3) The notice of appeal shall state whether the whole or part only of the judgment or order is appealed against and if only part of such judgment or order is appealed against it shall state which part and shall further specify the findings of fact and/or a ruling of law appealed against and the grounds upon which the appeal is founded."

In his answering affidavit in the striking application the applicant's attorney relied on the directive given by the Judge President for an expedited hearing of the appeal. In paragraph 11 of that affidavit the following is stated:
"It is correct that no notice of appeal as contemplated in Rule 49(2) was delivered by the appellant. This is as a consequence of the directive given by the judge president in chambers in relation to the expedited hearing of the matter. I accordingly deny that the appellant's appeal is not properly before this court and cannot lawfully be entertained."

In my view this contention applicant's attorney is clearly incorrect. On the version of the applicant as to what occurred in the judge president's chambers which was later admitted by the respondent's attorney, it is clear that the judge president did not give an express directive that Rule 49(2) not be complied with. In my view it cannot be read into the judge president's dispensation and directive for an expedited hearing of the appeal, that Rule 49(2) need not be complied with at all.

The authorities, I have found, do not deal with the position where there is no notice of appeal. They deal with the position where there is a defective notice. Herbstein & Van Winsen the

"Every notice of appeal to the full court must state whether the whole or part only of the judgment or order is appealed against and if only part of the judgment is appealed against it must state which part. The notice must also specify the finding of fact and/or ruling of law appealed against and the ground upon which the appeal is founded. These requirements are peremptory."

"The grounds of appeal are required inter alia to give the respondent an opportunity of abandoning the judgment, to inform the respondent of the case he has to meet and to notify the court of the points raised."
The authors then continue to state that
"It is submitted that a notice of appeal which does not comply with these requirements is fatally defective and invalid and that unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs."

Having come to the conclusion that in that case the notice of appeal did not specify exactly what part of the orders were being appealed against the court then continued at 574A:

I agree.

						

I agree.