Napier v Tsaperas (225/94) [1995] ZASCA 1; [1995] 2 All SA 262 (A) (23 February 1995)

Napier v Tsaperas (225/94) [1995] ZASCA 1; [1995] 2 All SA 262 (A) (23 February 1995)

The appeal was struck from the roll because the appellant failed to comply with the rules requiring timeous filing of the record and failed to apply for condonation for the late filing. The appellant's attorney was repeatedly informed of the requirements by both the respondent and the registrar but neglected to act. The court found no acceptable explanation for these failures and held that the striking from the roll was inevitable. On costs, the court determined that the wasted costs were entirely due to the appellant and his attorney's conduct. Given the attorney's admitted dereliction of duty and the appellant's offer to pay, the court ordered costs on the attorney and client scale,...

Citation
[1995] ZASCA 1
Parties
Appellant: R S Napier; Respondent: Haralambos Tsaperas
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 February 1995
Case Number
225/94
Procedural Posture
Civil Appeal / Appeal Struck From the Roll Due to Procedural Non Compliance
Outcome
Appeal struck from the roll; costs awarded against appellant and attorney jointly and severally on attorney and client scale.
Judges
Hoexter, E M Grosskopf, Van Den Heever
Legal Topics
Condonation of Late Filing, Attorney and Client Costs, De Bonis Propriis Costs, Striking From the Roll
Civil Procedure Condonation of Late Filing Attorney and Client Costs De Bonis Propriis Costs Striking From the Roll

Case Brief

Summary, issues, holding and outcome

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Parties

R S Napier

Appellant

Haralambos Tsaperas

Respondent

Procedural Posture

Civil Appeal / Appeal Struck From the Roll Due to Procedural Non Compliance

Legal Issues

  1. 1 Whether the appeal should be entertained despite non-compliance with the rules regarding timeous filing of the record.
  2. 2 Whether condonation for late filing of the record should have been sought and granted.
  3. 3 Whether costs should be awarded on an attorney and client scale and against the appellant's attorney de bonis propriis.

Ratio Decidendi

The appeal was struck from the roll because the appellant failed to comply with the rules requiring timeous filing of the record and failed to apply for condonation for the late filing. The appellant's attorney was repeatedly informed of the requirements by both the respondent and the registrar but neglected to act. The court found no acceptable explanation for these failures and held that the striking from the roll was inevitable. On costs, the court determined that the wasted costs were entirely due to the appellant and his attorney's conduct. Given the attorney's admitted dereliction of duty and the appellant's offer to pay, the court ordered costs on the attorney and client scale,...

Court Disposition

Appeal struck from the roll; costs awarded against appellant and attorney jointly and severally on attorney and client scale.

Orders

  • The appellant and attorney S C Thomson are ordered to pay, jointly and severally, the one paying the other to be absolved, on the scale as between attorney and own client, the costs wasted as a result of this matter being struck from the roll on 21 November 1994.