LT Real Estate CC t/a Maxprop Tongaat v Venketsamy (AR42/2018) [2020] ZAKZDHC 50 (9 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

KWAZULU-NATAL LOCAL DIVISION, DURBAN

CASE NO: AR 42/2018

In the matter between:

LT REAL ESTATE CC tla MAXPROP TONGAAT APPELLANT

and

VIDIYAVATHI VENKETSAMY

RESPONDENT

This judgment was handed down electronically by circulation to the parties' representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 09h30 on 9 October 2020.

ORDER

1. The application for condonation is dismissed with costs;

2. The appeal is dismissed with costs, including all reserved costs.

JUDGMENT

Chetty J (Vahed J concurring):

[1] This is an appeal against the whole of the decision -of the Magistrates ' Court , Verulam delivered on 13 April 2016. The appellant, the plaintiff in the court a quo, instituted action against the respondent claiming estate agent's commission owing to it, following the sale of the respondent's immovable property in circumstances where the appellant contends that its introduction of a purchaser constituted the effective cause of the sale of the property.

[2] A brief background is that the appellant, who carries on business as an estate agent, secured from the respondent a sole mandate to sell her residential property in La Mercy, KwaZulu-Natal. The respondent required a price of R1,5 million for the property and in turn granted the appellant a mandate from 9 October 2008 to 9 November 2008 to secure a purchaser. It was agreed that if the appellant secured a successful purchaser, the respondent would pay a commission calculated at 7.5 percent on the purchase price. The appellant failed to secure a purchaser within the period of the sole mandate and thereafter entered in an agreement with the

respondent pursuant to an 'open' mandate, during which time other agents were also mandated to sell the property.

[3] The appellant contends that it introduced the respondent to Mr and Mrs Govender as potential purchasers of the property. Their offer of R1,1 million however was refused by the respondent. The appellant contends that in June 2009 it became aware that the respondent concluded a private sale of the property with Mr and Mrs Govender in circumstances where it was the effective cause of the sale, thereby entitling it to damages based on its commission of 7.5 percent of the selling price, amounting to R89 775.

[4] The respondent contended otherwise, denying that the purchasers made an offer pursuant to an introduction by the appellant and denied that the latter was the effective cause of the sale. The version of the respondent was that the purchasers met her via a private listing of the property, and independently of the appellant. Consequently, the respondent denied any liability for estate agent's commission.

[5] _ In total, the court a quo heard the evidence of five witnesses and considered several bundles of exhibits. The principal agent of the appellant, Mr G Reddy, testified that apart from the sole mandate concluded with the respondent, an oral agreement was reached after the expiry of the sole mandate, for the appellant to continue marketing the property. An agent in the employ of the appellant, Mr T Pillay, introduced Mr Govender to the respondent and showed Mr Govender the property in March 2009. An offer presented by Govender was rejected by the respondent. The respondent testified that she marketed the property privately on the internet in July 2008. She confirmed that she entered into an agreement with the appellant to market and sell the property, but no suitable offers had been forthcoming. After attempts by the estate agents, including the appellant, had been unsuccessful, the respondent contacted Mrs Govender (a joint purchaser along with her husband) and concluded an agreement of sale in June 2009. The respondent was some time later contacted by the appellant's Mr Lazarus who contended that she owed them a commission based on the sale of her property. Mr Govender, the

joint purchaser of the property, testified that he had initially seen the property being advertised for sale on the internet. He confirmed having later viewed the property through Mr T Pillay of the appellant in February 2009, after which he made an unsuccessful offer to purchase.

[6] It is common cause that the property was eventually purchased by Mr and Mrs Govender for an amount less than originally offered. The issue before the court was whether the property was sold pursuant to a mandate given to the appellant, and if so, whether the respondent was liable for the estate agent's commission.

[7] The court a quo found in favour of the respondent on a balance of probabiilties, holding that the appellant failed to adduce sufficient evidence to show that the sale of the property took place during the period of its mandate or that it was the effective cause of the sale. The appellant's claim was dismissed with costs.

[8] The appellant delivered a notice of appeal of considerable length, some eight pages in extent, contending that the magistrate erred in a number of respects in holding that the appellant failed to prove its case. It is significant that nowhere in either the appellant's notice of appeal or in its heads of argument does the appellant point to any misdirection of the part of the court a quo in dismissing its claim. In doing so, it is pertinent to note that it is an established principle that the trial court's evaluation of the evidence and acceptance thereof, in the absence of material misdirection, is presumed to be correct. As such, an appeal court will not lightly interfere with those factual findings, particularly where credibility findings have been made. The trial court has had the advantage of seeing the witnesses in person and being able to observe their demeanour. An appeal court will interfere with such findings only when it is evident that there are demonstrable and material misdirections by the trial court.[1] Even on a generous interpretation of the word 'erred' to the exclusion of any reference to 'misdirection' in the notice of appeal,

the heads of argument of the appellant fail to deal in any manner with the shortcomings of the court a quo in assessing the evidence of the various witnesses.

[9] Against the backdrop of the magistrate's reasons for judgment handed down on 13 April 2016, the appellant delivered a notice of appeal on 26 October 2017. Magistrates' court rule 51(3) provides that:

'An appeal may be noted within 20 days after the date of a Judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer.' (my italics)

[10] The notice of appeal ought to have been delivered on 27 June 2016.[2]Consequently, the notice of appeal was delivered 18 months out of time. Additionally, there is no indication on the record that the appellant complied with the provisions of Magistrates' court rule 51(4) by proving security for costs at the time of noting its appeal. On 7 November 2017 the respondent's attorneys delivered a notice objecting to the notice of appeal. Uniform rule 50(4)(a) further requires that within 40 days of noting an appeal, an appellant must apply to the registrar for the assignment of a date for the hearing of the appeal. This period expired on 21 December 2017. There is nothing on the record to indicate compliance with this provision. A notice applying for a date for hearing by the appellant's attorney of record at the time, Rajespree Naidoo and Associates, is dated 22 January 2018. The respondent's attorney has no recollection of having received such a notice, albeit out of time. The notice, which forms part of the record, bears no indication of service on the respondent's attorneys. Uniform rule 50(4)(c) clearly contemplates that it is only after compliance with the provision of Uniform rule 50 in all its respects that an appellant can consider the appeal to have been 'duly prosecuted'. To the extent that the appellant was required in terms of Uniform rule 50(7)(a) to lodge two copies of the record simultaneously when applying for a date for hearing of the appeal, the respondent contends that the record was only served on her attorneys on 5 February 2018. Even if the record was delivered on 30 January 2018, being the date stamp of the registrar on the record, the record was still lodged out of time. On multiple scores, the appellant has flouted the rules.

[11] In light of the above, the respondent contends that the appeal has lapsed in terms of Uniform rule 50(4)(a), 50(4)(c) and 50(7)(a) 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' (my italics)

In Nawa & others v Marakala & another 2008 (5) SA 275 (BH) the court held that although the registrar had issued a date for the hearing of the appeal, this did not constitute condonation of non-compliance with the rules. This is a function for the court alone. Similarly, in terms of Uniform rule 50(1) an appeal against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of an appeal. Failure to do so results in the appeal not being prosecuted, in which event it 'shall be deemed to have lapsed'.

[12] The matter was set down for hearing on 1 March 2019. Despite the respondent's counsel having mounted an attack in his heads of argument dated 29 March 2018 against the appeal as having lapsed for failure to comply with the time limits prescribed in the rules, six days before the appeal could be heard, the appellant delivered an application for condonation in the following terms:

That the late delivery of the Applicant/Appellants Notice of Appeal and, in so far as may be necessary, its late delivery/prosecution of its appeal and for any late delivery of Volume SA and the Amended Master Index of the Appeal Record is condoned and/or the relevant time periods are extended, under section 84 of the Magistrate's Court Act, 32 of 1944.'

[13] It is noteworthy that the application does not refer to any specific sections of the Magistrates' Court Act 32 of 1944 ('the Act') or of the Uniform rules in respect of which condonation is sought for non-compliance. Of equal importance is that there is no prayer for relief for the reinstating of an appeal which is deemed to have lapsed. In light of the late application for condonation, an order was issued removing the appeal and the application for condonation from the roll, with costs reserved.

[14] The observations of Heher JA in Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at para 6 form a useful restatement of the general principles that inform whether an application for condonation should be granted:

'One would have hoped that the many admonitions concerning what is required of an applicant in a condonation application would be trite knowledge among practitioners who are entrusted with the preparation of appeals to this Court:. condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.'

[15] It is by now well-established that an applicant for condonation, particularly where the delay is significant, must set out with regard to the time which has elapsed, the steps taken to bring the matter to court. In Darries v Sheriff, Magistrate's Court, Wynberg & another 1998 (3) SA 34 (SCA) at 40H-41B, the court noted the following:

'Condonation of the non-observance of the Rules of this Court is not a mere formality.. . . the petition should set forth briefly and succinctly such essential information as may enable the Court to assess the appellant's prospects of success.'

The explanation for default must be sufficiently full to ena le the court to understand how it really came about, and to assess the applicant's conduct and motives.[3] The Constitutional Court in Van Wyk v Unitas Hospital & another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) para 22, has now set the standard of 'good cause' for condonation to encompass the following:

'An applicant for condonation must give a full explanatio·nfor the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.'

[16] The contents of the founding affidavit in support of the application for condonation fall lamentably short. If the appellant was alive to the standard set in Van Wyk, then its preparation for the appeal was negligent. The appellant does not dispute the various dates and time periods set out earlier, flowing from 30 May 2016 when the magistrate noted that he had nothing further to add to his judgment of 13 April 2016, to 30 January 2018 when the indexed record was delivered. The appellant takes apparent succour in contending that the indexed record was delivered only six days outside the 60-day time period in Uniform rule 50.[4] No attempt is made to give any explanation - let alone a full or detailed explanation - for why it waited almost 18 months from the date when judgment was delivered before it decided to deliver a notice of appeal. It is also significant that the application for condonation and the appeal itself were set down at the instance of the respondent, by notice to the registrar, received on 4 October 2019. This is indicative of the respondent's interest in obtaining finality in the matter as opposed to that of the appellant who showed scant disregard for the diligent prosecution of the appeal. It is symptomatic of the approach of the appellant in frustrating the satisfaction of the respondent's claim in the form of payment of its taxed bill of costs following the dismissal of the action.

[17] In attempting to explain the delay for the noting of the appeal and its prosecution, the deponent to the affidavit in support of condonation, Mr Lazarus, attributes the delay to an unnamed 'former attorney' who was employed at Rajespree Naidoo and Associates. The appellant does not disclose exactly what the conduct of the attorney was that led to the delay, or what steps he took as the client to ensure that the matter was being advanced. He then states that another unnamed attorney at the same firm was appointed to handle the matter and this attorney proceeded to prosecute the appeal 'with all due alacrity'. In the absence of any details as to the dates when this new attorney took over the matter, his statement that the appeal was prosecuted with 'due alacrity' is

simply hollow.

[18] In an attempt to escape personal liability for not prosecuting the appeal timeously, Mr Lazarus states that he is unfamiliar with appeal procedures and entrusted his attorney to timeously 'press forward' with the appeal. It is now well established that a litigant who blames its attorney for failure to comply with rules is not exonerated from blame. In Saloojee & another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C-O, the Appellate Division held that there 'is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or insufficiency of the explanation tendered.' Moreover, the deponent in the application for condonation provides no details of what steps he took to ensure compliance with the rules or when it first came to his attention that the time periods had not been complied with. His silence in this regard, especially in light of the respondent describing the appellant's delay and that of its attorney as constituting gross negligence and a flagrant disregard of the rules, is. instructive. The appellant

failed to deliver a replying affidavit in the condonation application. The assertions by the respondent remain unchallenged. In

Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 686E the court held that blame for delay was attributable to the appellant's 'own indifference and lack of concern'. The same can equally be said of the appellant in this matter. It is apposite to have regard to the remarks by Plaskett AJA in Mtshali & others v Buffalo Conservation 97 (Ply) Ltd (250/2017) [2017] ZASCA 127 (29 September 2017) where the court considered an appeal that was significantly out of time had lapsed and where the steps taken by the attorney for the appellant displayed no signs of urgency whatsoever. The court at para 50 said the following:

'In my view, this is a particularly gross case: the delay was extreme and the explanation unacceptable. Each stage of the delay increased the need for urgent and decisive action at the next stage yet, from beginning to end, the appellants' attorney's endeavours were feckless and desultory. In these circumstances, the appellants' prospects of success, even if they were assumed to be strong, could not salvage the appellants' position. The cumulative effect of the mismanagement of the appeal the inadequacy of the Explanation and the respondent's interest - and the public interest - in the finality of the litigation mean that the application for condonation and re-instatement of the appeal cannot succeed. If it had been necessary to consider the prospects of success, the appellants face a formidable hurdle, unrelated to the merits of their defence to the underlying action, in the form of the argument that by inter alia allowing the appeal to lapse and months later paying the respondent's costs without reservation, the appellants have perempted their appeal.'

[19] Regarding the contention by the respondent that the appeal has lapsed and that the appellant in the prosecution of the appeal, has failed to comply with the Uniform rules and the Act, the general principles set out in Federated Employers Fire & General Insurance Co Ltd & another v McKenzie 1969 (3) 360 (A) at 362 F-G are relevant:

'The late filing of a notice of appeal particularly affects the respondent's interest in the finality of his judgment - the time for noting an appeal having elapsed, he is prima facie entitled to adjust his affairs on the footing that his judgment is safe; ... "After all the object of the Rule is to put an end to litigation and to let parties know where they stand".'

[20] In explaining the reasons for the delay, Mr Lazarus says that following the delivery of the judgment he had expressed the intention to appeal the judgment. He does not go further to say what steps he took in acting on his intention to appeal other than to indicate that he relied on his attorneys. The respondent takes issue with the assertion that the appellant always had the intention to appeal the judgment and submits that the appeal was not borne out of a genuine belief that there were any prospects of success on the merits, but rather it was a reaction (albeit delayed by almost 16 months) to a writ of execution issued by the respondent's attorneys pursuant to their unsuccessful steps to recover costs awarded in favour of the respondent in the court a quo. It is correctly pointed out by the respondent that the appellant's initial response, after judgment by the court a quo, was to request reasons for the dismissal of the appellant's claim. The last day for the delivery of a notice of appeal was 26 June 2016. As indicated earlier, this notice was only delivered on 26 October 2017. The only explanation proffered by the appellant for the delay of 16 months was to blame its attorney of record. This explanation has already been shown to fall woefully short of the standard for a satisfactory and acceptable explanation for the delay. What is omitted by the appellant is his conduct in the interim in response to the attempts by the respondent to obtain satisfaction for its costs. This is relevant as it goes to the heart of whether the appeal arises from a genuine belief that the court a quo misdirected itself in dismissing the action, or whether it the appeal is motivated by an intention to frustrate the respondent in recovering her costs.

[21] Following the judgment of the court a quo and after the expiry of the period during which an appeal could have been noted, the respondent's attorneys delivered a notice of taxation on 7 October 2016. The appellant's attorney was present at the taxation held on 2 November 2016, and signed the allocaturon completion of the taxation. The total costs due to the respondent, as conceded by the appellant's attorney, was in the sum of R121 616,61. The respondent's attorney had however omitted to include counsel's fees in the bill submitted for taxation. The appellant's attorneys refused to consent to an amendment to the taxed bill and only after a formal application had been brought did the appellant's attorney agree that counsel's fees could be included. The amended bill was taxed on 2 May 2017 and a further amount of R31 462.84 was allowed. The respondent's total taxed costs therefor amount to R154 863.72.

[22] In an attempt to bring finality to the matter, the respondent's attorneys wrote to the appellant's attorneys prior to the second taxation enquiring whether payment could be made in respect of counsel's fees which were initially omitted. The appellant's attorneys replied on 17 February 2017 that after consultation with the appellant, he agreed to payment of the disbursements initially omitted from bill. There is no record of any payments by the appellant towards the taxed costs. Following a demand by the respondent's attorneys for payment of the taxed costs, the appellant's attorneys replied on 16 May 2017 that after consultation with the appellant, he tendered to pay the taxed costs within a period of three months. The respondent, for reasons not known, rejected the offer and instead proposed payment over two months. Nothing further was heard from the appellant. It was only after the sheriff

personally served a writ of execution on 16 September 2017 on Mr Lazarus and thereafter proceeded to attach goods in satisfaction of the taxed bill of costs, did the appellant spring into action and delivered a notice of appeal on 26 October 2017. What is apparent is that the appellant's sole member, Mr Lazarus, was personally consulted regarding the costs owing to the respondent and his attorneys conveyed an· offer to settlement for the amount owing. There was no hint, almost 10 months after judgment that the appellant harboured misgivings about the court's decision.

[23] It is in this context that the respondent contends that the appellant does not have any genuine intention of appealing the judgment. Mr Manikum, on behalf of the respondent, submitted that despite s 85 of the Act providing that a party shall not lose the right to appeal by offering to satisfy the judgment in respect of which he appeals, the appeal in this instance is perempted. In substantiation, counsel referred to the conduct of the appellant's attorneys in agreeing to the allocation of the bill of costs on two occasions at taxation, coupled with the offer to pay the taxed costs, albeit over a period of three months.

[24] In my view, the fact that payment was tendered over a period of three months (and rejected by way of a counter-proposal of two months) is irrelevant to the application of the principle of peremption. The appellant, as stated earlier, has not delivered a replying affidavit in the condonation application. As such, the respondent's contention that the tender of payment by the respondent constitutes acquiescence to the judgment, remains unchallenged. Wepner Jin Heafield & others v Rode/ Financial Services (Pty) Ltd [2012] JOL 28710 (GSJ) para 6, considered the principles governing peremption and referred to Gentiruco AG v Firestone SA (Pty) Ltd at 600A-B where Trollip J held that:

'The right of an unsuccessful litigant to appeal against an adverse judgment or order is said to be perempted if he, by unequivocal

conduct inconsistent with an intention to appeal, shows that he acquiesces in the judgment or order.'

The enquiry, in my view, is whether the conduct of the appellant, objectively assessed, evinces a clear conclusion of an intention not to assail the judgment. See Hlatshwayo v Mare and Deas 1912 AD 242 at 254; Venmop 275 (Pty) Ltd & another v Clever/ad Projects (Ply) Ltd & another2016 (1) SA 78 (GJ).

(25) In Tswe/ope/e Non-Profit Organisation & others v City of Tshwane Metropolitan Municipality & others 2007 (6) SA 511 (SCA) at para 10 Cameron JA expressed his view on the matter as follows:

'Peremption of the right to challenge a judicial decision occurs when the losing litigant acquiesces in an adverse judgment. But before this can happen, the Court must be satisfied that the loser has acquiesced unequivocally in the judgment. The losing party's conduct must "point indubitably and necessarily to the conclusion that he does not intend to attack the judgment": so the conduct relied on must be "unequivocal and must be inconsistent with any intention to appea"l ( Dabne r v South African Railways and Harbours 1920 AD 583 at 594, per Innes CJ).'

[26] The court in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration & others 2017 (1) SA 549 (CC) at para 12 described peremption as taking place where the waiver 'leaves no shred of reasonable doubt about the losing party's self-resignation to the unfavourable order that could otherwise be appealed against.'

[27] In light of the circumstances above of the offer by the appellant to pay the taxed costs and considering that the tender was made through the appellant's attorneys after consultation with Mr Lazarus, I am led to the ineluctable conclusion that the appellant had no intention to challenge the judgment of the court below. His conduct was 'unequivocal' and 'inconsistent with any intention to appeal' (Dabner v South African Railways and Harbours 1920 AD 583 at 594). The notice of appeal, delivered almost 16 months out of time, was nothing more than a rear-guard offensive to ward off the attachment of Mr Lazarus's personal belongings in satisfaction of the judgment. His conduct between when judgment was granted against him to the time when he served a notice of appeal displayed a clear and unmistakable intention to satisfy the judgment and pay the costs due to the respondent. I am satisfied that in the circumstances, the appellant waived or abandoned any right to appeal the order of the court a quo. See Sparks v David Polliack & Co (Ply) Ltd 1963 (2) SA 491.

[28] Apart from the aspect of peremption, the respondent has demonstrated that the failure of the appellant to comply with various time periods in the Uniform rules, includingUniform rule 49(6)(a), has resulted in the appeal lapsing. A lapsed appeal can only be resuscitated by the court, on good cause shown. No substantive application has been brought to revive the lapsed appeal and the appellant cannot rely on his condonation application, with broad brush strokes, to constitute good cause in terms of Uniform rule 49(6)(b). See MCQ Industries (Ply) Ltd v Chespak (Ply) Ltd (17527/10) [2013] ZAGPPHC 306 (22 October 2013) on the lapsing of an appeal in terms of Uniform rule 49(6)(a) and 49(7)(d).

[29] To the extent that various authorities hold the view that in a condonation application, regard must also be had to the prospects of success, where non­ compliance with the rules is manifest and egregious, the views expressed in P E Bosman Transport Works Committee & others v Piel Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D-E hold true:

'In a case such as the present, where there has been a flagrant breach of the Rules of this Court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.'

Similarly, in Blumenthal & another v Thomsom NO & another [1993] ZASCA 190; 1994 (2) SA 118 (A) at 121H-I, Joubert JA said the following:

'This Court has often said that in cases of flagrant breaches of the Rules, especially where there is no acceptable explanation therefor, the indulgence of condonation may be refused whatever the merits of the appeal are; this applies even when the blame lies solely with the attorney (Tshivhase Royal Council and Another v Tshivhase and Another; Tshivhase and Another v Tshivhase and Another [1992] ZASCA 185; 1992 (4) SA 852 (A) at 859 E-F)'.

[30] As stated earlier, the respondent submits that in so far as the merits of the appeal are concerned, the appellant has had the benefit of the reasons of the court a quo since 13 April 2016. The appellant's notice of appeal, delivered 18 months later, contends in some detail that the court a quo over-emphasised the shortcomings in the evidence of the appellant's witnesses; that it failed to take into account the extent to which the evidence of the witnesses corroborated each other; that it erred in finding that its witnesses (Mr G Reddy and Mr T Pillay) were poor witnesses and that it wrongly concluded that the appellant did not have an oral mandate in place at the time when it introduced the eventual purchaser to the respondent. The appellant's heads of argument set out the facts and the law, but fail to point to a single misdirection on the part of the court a quo in arriving at its decision. I can find nothing on the record that points to a misdirection by the magistrate in arriving at his

decision that the appellant failed to prove its case.

[31] In conclusion, not only has the appellant failed to make out a case on the merits of its appeal, but it has breached numerous rules regulating the manner in which appeals should be prosecuted. It only dawned on the appellant to apply for condonation six days prior to the hearing set down on 1 March 2019. That hearing was removed from the roll with the issue of costs reserved. It failed to deliver a replying affidavit nor did it deliver any heads of argument on the crucial issue of condonation. In the period since March 2019 to June 2020 when the appeal was to be heard, the appellant's former attorneys Rajespree Naidoo and Associates were suspended from practice. This occurred in December 2019. In a letter dated 7 May 2020 directed to the Registrar, attorney Keshan Pillay indicated that as a result of the suspension of the appellant's former attorneys, his firm had been 'approached' by the appellant regarding the appeal. He claims not to have had sight of 'any court documentation' in regard to the matter and was not in a position to deal with it. On that basis he 'suggested' that the matter not proceed on 19 June 2020.

[32] It is not for an attorney to 'suggest' to the court that an appeal be postponed. That is a decision for the court to make, on the basis of a substantive application, properly motivated. Moreover, it is unclear from the letter whether the attorney had received instructions in the matter, and if so, what those were. Lastly, attorney Keshan Pillay claims not to have seen any of the documentation in this matter. A perusal of the record indicates that he was an attorney employed by Rajespree Naidoo and Associates and was entrusted with the matter prior to the hearing set down for 1 March 2019. The suggestion that he was unfamiliar with the

appeal cannot be believed. To add to the appellant's woes, attorneys De Wet Leitch Hands Inc, on 6 June 2020, delivered a notice of appointment as the new attorneys of record for the appellant, two weeks prior to the hearing of the appeal, and requested permission to uplift the record as it manifested several defects. This request was refused. Apart from what has already been set out regarding the appellant's non-compliance with the time periods for prosecuting this appeal, the entire conduct by those representing the appellant is regrettable. Even counsel who drew the heads on behalf of the appellant for the hearing in March 2019 informed the court that he was not briefed to argue the matter on 19 June 2020. As matters transpired, in light of the national lockdown, this appeal was disposed of on the papers, by consent of the parties.

[33] In the result, this appeal had no prospects of success on the merits and was hopelessly out of time. I agree with respondent's counsel that the decision to appeal was more likely a reactionary measure intended to stall the execution levied against the belongings of the sole member of the appellant, Mr Lazarus. As a sign of my displeasure at the manner in which this appeal has been prosecuted, an adverse order of costs on an attorney and client scale would have been appropriate. However, the appellant appears to have been poorly advised and poorly· represented in this matter.

To saddle it with an adverse order of costs in dismissing his appeal would be to punish it beyond what would be fair.

[34] In the result, I make the following order:

a. The application for condonation is dismissed with costs;

b. The appeal is dismissed with costs, including all reserved costs.

CHETTY J

VAHED J

Appearances

For the Appellant ME Stewart (Heads of Argument only)

Instructed by de wet Leitch Hands inc

Address Section 3 Salmon bay house

Tel

032 946 0299

Email

info@dln.co.za

c/o

Stowell & Company

address

295 Pietermaritz Street Pietermaritzburg

tel

033 845 0500

email

anthonyi@stowel.co.za

ref

A Irons

for the respondent M Manikam

instructed by

Krish Naidoo, Govender &Co

address

1st floor 337, Main Road Tongaat

c/o

Messrs Tomlinson Mnguni James inc

12 Montrose Park Boulevard

Victoria Country Club Estate Pietermaritzburg

Ref:

Ms S Sohan

Date of hearing

19 June 2020

Date of judgment 09 October 2020

[1] See S v Hadebe & others 1998 (1) SACR 422 (SCA); S v Monyane & others 2008 (1) SACR 543 (SCA); S v Francis 1991 (1) SACR 198 (A); S v Bailey 2007 (2) SACR 1 (C); R v Dhlumayo & another 1948 (2) SA 677 (A).

[2] Following a request for reasons, the magistrate filed a notice dated 30 May 2016 stating that he had nothing further to add to his judgment handed down on 13 April 2016.

[3] Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A.

[4] The respondent contends that the record was delivered on 5 February 2018.