Ndwandwa v Auto & General Insurance Co. Ltd. (CA149/2001) [2003] ZAECHC 6 (1 March 2003)

Ndwandwa v Auto & General Insurance Co. Ltd. (CA149/2001) [2003] ZAECHC 6 (1 March 2003)

The appellant failed to provide a full and acceptable explanation for the delays in prosecuting the appeal and filing heads of argument. The evidence presented did not satisfactorily account for the periods of inactivity and neglect by the appellant's attorneys. Furthermore, the appellant did not discharge the onus of proving that the insurance contract did not contain the time limitation clause relied upon by the respondent. The probabilities overwhelmingly favoured the respondent's version regarding the issuance and content of the insurance contract. In light of the unexplained delays and lack of prospects of success on appeal, condonation was refused and the appeal was struck from the...

Citation
[2003] ZAECHC 6
Parties
Appellant: Luvuyo Ndwandwa; Respondent: Auto & General Insurance Co. Ltd
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
1 March 2003
Case Number
CA149/2001
Procedural Posture
Civil Appeal / Application for Condonation and Appeal Against Magistrate's Court Decision
Outcome
Application for condonation dismissed; appeal struck from the roll, with costs.
Judges
L.E. Leach, S.P. Maqubela
Legal Topics
Condonation, Insurance Contracts, Onus of Proof, Appeal Struck Off Roll
Civil Procedure Commercial and Corporate Condonation Insurance Contracts Onus of Proof Appeal Struck Off Roll

Case Brief

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Parties

Luvuyo Ndwandwa

Appellant

Auto & General Insurance Co. Ltd

Respondent

Procedural Posture

Civil Appeal / Application for Condonation and Appeal Against Magistrate's Court Decision

Legal Issues

  1. 1 Whether condonation should be granted for the late prosecution of the appeal and late filing of heads of argument.
  2. 2 Whether the appellant discharged the onus of proving the insurance contract did not contain the time limitation clause.
  3. 3 Whether the appeal should be struck from the roll due to procedural non-compliance.

Ratio Decidendi

The appellant failed to provide a full and acceptable explanation for the delays in prosecuting the appeal and filing heads of argument. The evidence presented did not satisfactorily account for the periods of inactivity and neglect by the appellant's attorneys. Furthermore, the appellant did not discharge the onus of proving that the insurance contract did not contain the time limitation clause relied upon by the respondent. The probabilities overwhelmingly favoured the respondent's version regarding the issuance and content of the insurance contract. In light of the unexplained delays and lack of prospects of success on appeal, condonation was refused and the appeal was struck from the...

Court Disposition

Application for condonation dismissed; appeal struck from the roll, with costs.

Orders

  • Volume two of the record of appeal containing the exhibits as prepared by the appellant is substituted by the record of appeal containing the exhibits prepared by the respondent.
  • The costs of the application for substitution brought by the respondent under its notice of motion of 30 April 2002 are to be paid by the appellant.