REPORTABLE 

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

								Case Number: A739/2010
In the matter between:

v

Delivered: 14 September 2011

JUDGMENT

[2] The appellant has also brought two applications for condonation, both of which are opposed by the respondent. These are considered below.

Background

3.2. the cause of action arose within the court's area of jurisdiction; and further alternatively that

[6]     In paragraph 2 of the particulars of claim the respondent is cited as follows:

This allegation was admitted by the respondent.

[9] In his judgment the magistrate dealt with the contradictions in the respondent's pleadings as follows:

Applications for condonation
[11] Before dealing with the merits of the appeal it is necessary to consider the appellant's two applications for condonation. In what follows hereunder reference to the rules is to the uniform rules of this court.

[12] The first application relates to non-compliance with rule 50(4)(a) as to the period within which the appellant should have applied for a date for the hearing of the appeal, coupled with a prayer that the appeal be reinstated. (It should be mentioned that the latter portion of the relief sought was introduced during argument and was not opposed by the respondent. The amendment sought was thus granted.)

[13] The second application relates to non-compliance with rule 50(9) as to the time period within which the appellant should have filed its heads of argument. The impression that I gained when the matter was argued was that the respondent's opposition focussed on the application for condonation for non-compliance with rule 50(4), and that not much turned on the application for condonation for non-compliance with rule 50(9).

[14]   The affidavits filed show the following:
14.1. The direct cause of the delay in failing to prosecute the appeal timeously was the negligence of the appellant's instructing attorneys. Judgment was delivered on 11 September 2009. Following upon delivery of reasons for judgment on 9 October 2009 and the appellant's notice of appeal on 6 November 2009 the appellant only applied to the registrar for a date for the hearing of the appeal on 2 December 2010, i.e. more than a year after the noting thereof.
14.2. This notwithstanding the appellant intended to prosecute the appeal throughout. This is evidenced by the steps taken by its attorneys in relation to transcription of the record and the events surrounding the postponement of the initial date allocated for the appeal in June 2011.
14.3. Despite the unacceptable delay, the respondent (albeit with express reservation of its rights) co-operated in arranging a new date for the appeal when it had to be postponed at the instance of the appellant in June 2011.
14.4. The reason why the appellant's heads of argument were filed 6 court days late was because counsel briefed for this purpose did not draft them timeously (despite his instructions to do so) and new counsel had to be instructed at a very late stage for this purpose.

[15] Rule 50(1) provides that an appeal to the High Court against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of such appeal and unless so prosecuted it shall be deemed to have lapsed.

[16]   Rule 50(4)(a) provides that the appellant shall within 40 days of noting the appeal apply to the registrar in writing upon notice to the other party for the allocation of a date for the hearing of the appeal. Rule 50(4)(b) provides that in the absence of such an application the respondent may prior to the expiration of the 60 day period apply for a date for the hearing. It is common cause that the respondent did not take any such step.

'This court has held that the standard for considering an application for condonation is the interests of justice. Whether it is in the interests of justice to grant condonation depends upon the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.'

[22] The appellant's counsel in that case (correctly) conceded that the appellant's attorney had been grossly negligent in the handling of the matter. He submitted however that the merits of the appeal were so strong that the condonation sought should be granted.

[26] It is thus my view that both applications for condonation should be granted, but I intend to make an appropriate costs order against the appellant's instructing attorneys as a mark of this court's displeasure.

Merits of the appeal

[28]   The relevant portions of s 28(1) of the Act are as follows:

(1) Saving any other jurisdiction assigned to a court by this Act or by any other law, the persons in respect of whom the court shall, subject to subsection (1A), have jurisdiction shall be the following and no other:

(emphasis supplied. S 28(1A) is not applicable in this case.)

[33] That having been said, there is no general test as to whether a person carries on business in a particular district. The cases reflect that the operations of the person concerned must in each case be examined to see what the business (if any) is, and when that is known the place or district in which the business is carried on can be determined.

[38]   I accordingly propose the following order:
1. The appeal succeeds with costs, save (a) for the costs attendant upon the appellant's application for condonation in respect of its noncompliance with rule 50(4)(a), which costs shall be borne by the appellant's instructing attorneys Hugo & Ngwenya Incorporated; and (b) the costs attendant upon the appellant's application for condonation in terms of rule 50(9) which shall be borne by the appellant;

a) The defendant's special plea of non-jurisdiction is dismissed;
b) The trial shall proceed on a date to be arranged by the parties with the Clerk of the Court;
c) Costs shall be costs in the cause.
J I CLOETE

F O U RIE J: I agree. It is so ordered.