Symes N.O and Others v Harry's Tyres (Pty) Ltd (CIV APP FB 10/2023) [2023] ZANWHC 171 (15 September 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO A QUO: 2801/2019

APPEAL CASE NO: CIV APP FB 10/2023

CASE NO: SCA224/2022/LTA

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:-

SYMES N.O. MARYNA ESTELLE 1st Applicant MEDUPE N.O. TSHEPO 2nd Applicant MOOLLAJIE N.O. ABDURUMAN 3rd Applicant In their capacities as the joint liquidators of Over-All Road Express (Pty) Limited (in liquidation) And Harry’s Tyres (Pty) Ltd Respondent In re: HARRY’S TYRES (PTY) LTD Applicant/Defendant and SYMES N.O. MARYNA ESTELLE 1st Respondent/Plaintiff MEDUPE N.O. TSHEPO 2nd Respondent/Plaintiff MOOLLAJIE N.O. ABDURUMAN 3rd Respondent/Plaintiff In their capacities as the joint liquidators of Over-All Road Express (Pty) Limited (in liquidation)

JUDGMENT

FMM REID, J:

Introduction:

[1] This application deals with the lapsing of an application for the date of an appeal as opposed to the lapsing of the appeal itself.

[2] The applicants essentially seek the following relief:

2.1.

A declaration order that the respondent’s application for a date for the hearing of its appeal, dated 15 August 2022, is declared to have lapsed pursuant to Uniform Rule 49(7)(d) of the Uniform Rules of Court; and

2.2.

By reason of the lapsing of the respondent’s application for a date for the hearing of its appeal as ordered in prayer 1 above, it be confirmed and declared that the respondent’s appeal to the full court of this Division has lapsed in terms of Uniform Rule 49(6)(a).

[3] The applicants seek the above relief after setting the matter down on the opposed motion roll to be heard by a single judge. It was consequently heard by myself.

[4] The crisp issue for this court to decide is whether the ex lege lapsing of the appeal in terms of Uniform Rule 49(6)(a) results therein that the appeal itself has lapsed in terms of Uniform Rule

49(7)(d). The applicant phrases the issue before court in its heads of argument as follows:

“5. The only application serving before this court for hearing is that of the applicants. The respondent’s condonation/reinstatement application of the lapsed appeal will be heard by the appeal court in due course.”

[5] Further in the heads of argument it is argued on behalf of the applicant that:

“6.… The condonation / reinstatement application is not a barrier to this court pronouncing on whether the respondent’s appeal, as a matter of law, has lapsed, while the appeal court can deal with condonation / reinstatement application in due course.

7. The applicant’s application herein does not require the prospects of success of the appeal to be traversed. The respondent’s condonation / reinstatement application will be heard by the appeal court in due course, and the prospects of success will then be a factor to consider.”

[6] My understanding of the applicants’ case is that a declaratory order is sought to the effect that the appeal has lapsed, whilst acknowledging that the full court which will hear the appeal, will decide whether to condone the non-compliances of the Uniform Rules before determination of the appeal.

Parties

[7] The respondent was the defendant in the Court a quo and it appeals against the whole judgment as handed down on 16 September 2021 by Djaje J (as she then was). In this judgment an order was made that the disposition that was made in terms of section 29(1) of the Insolvency Act 24 of 1936 to the amount of R1,074,169.14 in favour of the defendant was set aside, together with costs to be paid by the defendant.

[8] Leave to appeal was refused by the court a quo. The matter is before this court after a successful petition, in which the matter is referred back to be heard by a full court of this Division.

[9] To prevent confusion, I will refer to the applicants, who is the appellants in the appeal and who were the plaintiffs in the court a quo, as “the appellants” or “the applicants” interchangeably as the context requires. The liquidators act in their official capacity as joint liquidators of the company Over-All Road Express (Pty) Ltd, which is in liquidation.

[10] The respondent is Harry’s Tyres (Pty) Ltd who was the plaintiff in the court a quo and will be referred to as “the respondent”.

Material factual background

[11] The notice of appeal had been filed on 24 June 2022 and in terms of Rule 49(6)(a) the respondent had to make written application with the registrar for a date of the appeal within 60 days from 24 June 2022.

[12] The respondent timeously and on 15 August 2022 filed such application with the Registrar of this Court.

[13] The respondent failed to file a power of attorney together with the application for the date for hearing as required by Uniform Rule 7(2) and without which the Registrar shall not set down the matter on appeal.

[14] On 15 August 2022 the respondent was unable to file the completed appeal record together with the application for a date for hearing, as required by Uniform Rule 49(7)(a). The respondent filed an affidavit in terms of Rule 49(7)(a)(ii) on 15 August 2022 and the Registrar accepted the application.

[15] In terms of Rule 49(7) (d) the respondent had to file the complete appeal record within 40 days of the application for a date for hearing, which is before 10 October 2022.

[16] The respondent failed to file the appeal record by 10 October 2022 and the applicant therefore on 22 November 2022 lodged an application in terms of Rule 49(7)(d) that the application for the date of the hearing had lapsed. This is the application currently before court.

[17] On 9 January 2023 the respondent filed a letter of authority with an affidavit seeking condonation for the failure to file the power of attorney and the appeal record timeously. The respondent, to this end, filed a supplementary affidavit.

[18] The record of appeal was filed on 21 June 2023.

[19] The parties are ad idem that the notice of the appeal has lapsed ex lege in terms of Rule 49(6)(a).

[20] The respondent, who is the appellant in the appeal, has filed two (2) applications for condonation, namely:

20.1. for the late filing of the power of attorney as required by Rule 7(2) with an application that the appeal be reinstated in terms of Rule 49(6)(b); and

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20.2. the appellant has filed an application for condonation to reinstate the appeal in terms of Rule 49(7)(a)(ii).

Legislative framework

[21] The following Uniform Rules are applicable. Uniform Rule 7 deals with the filing of a Power of Attorney together with the application for a date of the hearing in an appeal.

“7 Power of attorney

(1) …

(2) The registrar shall not set down any appeal at the instance of an attorney unless such attorney has filed with the registrar a power of attorney authorising him to appeal and such power of attorney shall be filed together with the application for a date of hearing.”

[22] Uniform Rule 49 is also applicable and reads as follows:

“49 Civil Appeals from the High Court

(6)(a) Within sixty days after delivery of a notice of appeal, an appellant shall make written application to the registrar of the division where the appeal is to be heard for a date for the hearing of such appeal and shall at the same time furnish him with his full residential address and the name and address of every other party to the appeal and if the appellant fails to do so a respondent may within ten days after the expiry of the said period of sixty days, as in the case of the appellant, apply for the set down of the appeal or cross-appeal which he may have noted. If no such application is made by either party the appeal and cross-appeal shall be deemed to have lapsed: Provided that a respondent shall have the right to apply for an order for his wasted costs.

(b) The court to which the appeal is made may, on application of the appellant or cross-appellant, and upon good cause shown, reinstate an appeal or cross-appeal which has lapsed.

(7)(a) At the same time as the application for a date for the hearing of an appeal in terms of subrule (6)(a) of this rule the appellant shall file with the registrar three copies of the record on appeal and shall furnish two copies to the respondent. The registrar shall further be provided with a complete index and copies of all papers, documents and exhibits in the case, except formal and immaterial documents: Provided that such omissions shall be referred to in the said index. If the necessary copies of the record are not ready at that stage, the registrar may accept an application for a date of hearing without the necessary copies if—

(i) the application is accompanied by a written agreement between the parties that the copies of the record may be handed in late; or

(ii) failing such agreement, the appellant delivers an application together with an affidavit in which the reasons for his omission to hand in the copies of the record in time are set out and in which is indicated that an application for condonation of the omission will be made at the hearing of the appeal.

(b) The two copies of the record to be served on the respondent shall be served at the same time as the filing of the aforementioned three copies with the registrar.

(c) After delivery of the copies of the record, the registrar of the court that is to hear the appeal or cross-appeal shall assign a date for the hearing of the appeal or for the application for condonation and appeal, as the case may be, and shall set the appeal down for hearing on the said date and shall give the parties at least twenty days’ notice in writing of the date so assigned.

(d) If the party who applied for a date for the hearing of the appeal neglects or fails to file or deliver the said copies of the record within 40 days after the acceptance by the registrar of the application for a date of hearing in terms of subrule (7)(a) the other party may approach the court for an order that the application has lapsed.”

(own emphasis)

[23] Rule 49(6)(b) in its express wording specifies which court should deal with the application for the reinstatement of appeal. There cannot be any ambiguity that the court of appeal, which will be the full bank that will be constituted to hear the appeal, is the correct court to deal with the condonation applications. The meaning of the words “The court to which the appeal is made may, on application of the appellant… and upon good cause shown, reinstate an appeal … which has lapsed does not leave room for any other interpretation.

[24] Rule 49(6) expressly determines an appeal to have become lapsed ex lege but with the proviso that condonation can be granted by the court that hears the appeal and the appeal can then be reinstated.

[25] My understanding of the legal position is supported in Aymac CC v Widgerow 2009 (6) SA 433 W at 441 D-F where the following was found by a full bank hearing an appeal:

“[8] A power of attorney is required for the setting-down of the appeal, but not for the setting-down of a reinstatement application. It was therefore technically possible to hear the reinstatement application, and, if it were granted, to require that the appeal be set down for hearing at a later date. However, it is usual, and desirable, that the reinstatement application (or an application for condonation) and the appeal be heard at the same time. See Motsamai v Read and Another 1961 (1) SA 173 (O) at 174B - E; Meyer v Dowson & Dobson Ltd 1967 (4) SA 628 (T) at 628F; De Sousa v Cappy's Stall 1975 (4) SA 959 (T) at 961C - F; Lipschitz NO v Saambou-Nasionale Bouvereniging 1979 (1) SA 527 (T) at 529B - E. Accordingly the reinstatement and the reconstruction applications were postponed. As long as there was a possibility of condonation and reinstatement, they, and the appeal, had not become academic.”

[26] In South African Allied Workers’ Union (in liquidation) and Others v De Klerk and Another 1992 (3) SA 1 (A) the following was held by the Appeal Court (Headnote):

“The current practice in applications for the condonation of a failure to comply with the Rules of the Appellate Division relating to the prosecution of an appeal is for such application to be set down at the same time as the hearing of the appeal. Since the Court would have before it and would have studied the judgment of the Court a quo, the heads of argument and, indeed, the full appeal record, the prospects of success or otherwise would be reasonably apparent.”

[27] The wording of Uniform Rule 49(7) echoes that it Uniform Rule 49(6) and it clearly specifies that it is the court “that is to hear the appeal” is the court to hear the application for condonation for failure to comply with the Uniform Rules.

[28] It is a well-established practice that the court that hears the appeal, is the court that considers the condonation applications on the reinstatement of the appeal.

Reasoning

[29] The difference, it seems, between the status of the appeal in relation to Rule 49(6) opposed to Rule 49(7), is that Rule 49(6) determines a lapse of the appeal ex lege on the appellants’ failure to comply with the Rule, where Rule 49(7) determines that the opposing party may approach the court to have the appeal declared lapsed, on the appellants’ failure to comply with the Rule.

[30] One of the reasons or one ratio for the court of appeal to be the court best suited to adjudicate the applications for condonations is that the prospects of success is an essential factor to consider in whether condonation should be granted for the appeal to be reinstated or not.

[31] I find it difficult to understand the reasoning of the applicant in seeking declaratory orders that the appeal has become lapsed, where the applicants concede in their heads of argument, as set out in paragraph [4] and [5] above, that the court of appeal will be the correct court to determine whether condonation should be granted and the appeal should proceed.

[32] The applicants request an order that the appeal itself has lapsed. Simultaneously, the applicants concede that the appeal can be reinstated on successful application for condonation, which application for condonation is to be considered by the court that hears the appeal. The court that hears the appeal is obviously the full court.

[33] On this basis, I respectfully hold the view that this application is an exercise in futility.

Costs

[34] The normal order is that the successful party is entitled to its costs.

[35] This application is unique in that the respondent agrees that the appeal has lapsed ex lege and in terms of Rule 49(6).

[36] It is further unique in that the applicants concede that, irrespective of the order that this court makes, the appellant would remain entitled to set down the appeal for the applications for condonation and reinstatement of the appeal is to be heard by the court that hears the appeal.

[37] On the basis of the above, I regard this as a situation where a deviation of the normal standard rule in adjudication of costs would be justified.

[38] The application should not have been brought as it has no practical effect. As such, the applicants should be ordered to pay the costs of the respondent.

Order

On the above premise, I make the following order:

i. The respondent’s appeal to the full court has become lapsed ex lege in terms of Uniform Rule 49(6)(a);

ii. The respondent’s applications for condonation on the reinstatement of the appeal in terms of Rule 49(6) and Rule 49(7) is to be considered by the court of appeal to be constituted by a full court.

iii. The applicants are ordered to pay the costs of the application.

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE OF HEARING:

28 JULY 2023

DATE OF JUDGMENT: 15 SEPTEMBER 2023

APPEARANCES:

FOR APPELLANT: ADV W G PRETORIUS INSTRUCTED BY: BROOKS & BRAATVEDT INC C/O: SMIT STANTON ATTORNEYS 29 WARREN ATREET MAHIKENG TEL: 018 381 0180 REF: NJ/OVE3/0001/2019/jvr FOR RESPONDENT: ADV A M HEYSTEC SC INSTRUCTED BY: JAPIE VAN ZYL ATTORNEYS BOTHA STREET 32780 SCHWEIZER-RENEKE C/O VAN ROOYEN TLHAPI WESSELS INC 9 PROCTOR AVENUE MAHIKENG TEL: 018 381 0804 REF: J0115/0035/AA