Ensign-Bickford (South Africa) (Pty) Ltd and Others v AECI Explosives & Chemicals Ltd. (4/95) [1998] ZASCA 8; 1998 (2) SA 1085 (SCA); (13 March 1998)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

CASE NUMBER: 4/95 In the matter between:

ENSIGN-BICKFORD (SOUTH AFRICA)

(PTY) LIMITED

1st APPELLANT

BULK MINING EXPLOSIVES

2nd APPELLANT

DANTEX EXPLOSIVES

3rd APPELLANT

and

AECI EXPLOSIVES &

CHEMICALS LIMITED

RESPONDENT

CORAM:

VAN HEERDEN DCJ, MARAIS,

SCHUTZ, SCOTT and PLEWMAN JJA

DATE OF HEARING: 16 FEBRUARY 1998

REASONS: 13 MARCH 1998

REASONS FOR JUDGMENT

PLEWMAN JA

2The Rules of this Court require an appellant within a prescribed

The Rules of this Court require an appellant within a prescribed

period to "lodge with the registrar six copies of the record of the

proceedings in the court appealed from" (Rule 5(4)). Such a record

"shall contain a correct and complete index of the evidence and of all

the documents and exhibits in the case, the nature of the exhibits

being briefly stated in the index" (Rule 5(11)). The record lodged in

this appeal, in purported compliance with the rules, was (and still is)

defective in material respects as regards both the content thereof and

the indexing thereof To the extent that this is necessary I will

presently expand on this observation. As a consequence, and after

events to which reference will also presently be made, and after

hearing counsel, the court, for reasons to be filed, made the following

orders.

"1. The appeal is postponed sine die.

2. The appellants are to pay jointly and severally, the one paying the other to be absolved, on the scale of attorney and client the costs wasted as a result

3

of the appeal being postponed including the costs of two counsel.

3.

The appellants are to file a properrecord within 30 days and theappellants are to file within 15 daysand the respondent within 30 days ofthe lodging of the record amendedheads of argument.

4.

The postponement hereby ordered isgranted on the basis that theappellants have waived thesuspension, pending the outcome ofthe appeal, of paragraph 1 of theorder of the court a quo."

The Court's reasons are as follows.

A brief explanation of the nature of the litigation is necessary. The appellants were the defendants in actions (which were consolidated) in the Court of the Commissioner of Patents in which they were sued by respondent on the grounds of patent infringement. The respondent is the owner by reason of an assignment to it of South African Letters Patent 79/3210 in respect of an invention entitled

4"Low-energy fuse consisting of a plastic tube the inner surface of

"Low-energy fuse consisting of a plastic tube the inner surface of

which is coated with explosive in powder form". Appellants denied

infringement and pleaded in terms ofs 65(4)of thePatents Act 57 of

s 65(4)

Patents Act 57 of

1978that the patent was invalid on a number of grounds and

counterclaimed for revocation thereof The pleadings thus gave rise

to a wide area of dispute.

The matter went to trial before MacArthur J sitting as Commissioner of Patents. After a lengthy hearing he held the patent to be valid and to have been infringed. He granted an order interdicting appellants from infringing claims 1 and 4 of the patent, granted appropriate supplementary relief and dismissed the counterclaims. On 6 December 1994 the appellants were granted leave to appeal to this Court.

The appeal was duly noted. Appellants thereafter experienced difficulty in preparing the record and sought and obtained an extension of the time within which to do so. One source of their

5 difficulties was that the original record had been mislaid in the Patents

Office. On 3 April 1995 (within the period of the agreed extension)

appellants attempted to lodge the record but it was rejected by the

registrar because of errors therein. Appellants again sought and

obtained respondent's agreement to a further extension of time.

Ultimately on 28 April 1995 appellant lodged, in a form which has

given rise to this Court's order, a record consisting of twenty four

volumes (or 2265 pages) of pleadings, evidence and documentary

exhibits.

In March 1996 the original record was traced. It does not seem

that the form and content of the appeal record which had been lodged

was re-examined in the light of this discovery. Further, counsel's

heads of argument were prepared on the record lodged. The

appellants' heads of argument are dated 22 April 1996. Counsel, it is

clear, found that certain documents to which they wished to refer had

been omitted from the record. It is stated in paragraph 7 of

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appellants' heads of argument that "due to an oversight the Appeal

Record is incomplete in that certain documents referred to in oral

evidence have not been included". A supplementary bundle

comprising "these documents" was prepared and a petition dated 17

October 1996 seeking condonation for the late lodging thereof was

filed. This then became "Supplementary Record: Volume 25". In the

meantime respondent's heads of argument, dated 18 July 1996, had

been filed. No comment is made therein with regard to the state of the

record. How counsel (on both sides) could have overlooked certain

other serious deficiencies in the record is not clear.

Upon delivery of the record to the members of the Court it was

apparent that there were serious deficiencies in the record. In

argument which this Court required to be presented in terms of a

directive to be referred to below, appellants' counsel conceded that

the record was indeed defective and that he could not ask that the

appeal proceed on the record as it stood. It is therefore strictly

7unnecessary to discuss the defects in detail or, indeed, to recount the

unnecessary to discuss the defects in detail or, indeed, to recount the

further efforts to rectify it which followed from a request made by the

Court in December 1997. But a few examples of the shortcomings

may be given to portray the degree of the defects.

In the form in which it stood when delivered to the members of

the Court it was impossible to ascertain by reference to a volume and

a page where many of the documentary exhibits referred to in the

evidence of witnesses were to be found. The index of the appeal

record gave no assistance in this regard. As an example one may take

exhibit B - an exhibit in respect of which a finding of major

importance was made regarding the allegation of invalidity on the

ground of prior use of the invention, clearly a document of

fundamental importance. It was not listed in the index. Nor is

reference made in appellants' heads to where it is to be found, though

the court a quo's finding is attacked. It should not be thought that this

was an isolated and unfortunate omission. In a perusal of the first

8 1000 pages of the record of oral evidence (alone) I noted at least 23

instances where the document being dealt with in evidence could not

be traced even after attempts to locate it by perusing the index and the

general description there given and making a comparison with the

description given of the document in the evidence. Volume 25 was

of some assistance but in many cases that task was in fact impossible.

Another difficulty with the record was the frequent references

in the evidence to certain trial bundles marked A, B and C. These

bundles are not reproduced as such in the record and the original

pagination to which reference is made in the evidence has been

deleted. In some instances it was possible by reference to matters

such as the date or general description given in the evidence to trace

the documents in volume 14 and onwards. But again this was not

possible in all cases. Here too Volume 25 was of some assistance

only. Volume 25 was a partial remedy, at best, because (as

subsequent events demonstrated) in some instances the relevant

9documents had not been included in the record even as supplemented

documents had not been included in the record even as supplemented

thereby. This finally became clear on 30 January 1998 when a yet

further volume - Volume 26 was tendered - a matter to be referred to

in its correct sequence.

In the light of the difficulties encountered by the members of the Court the registrar, at the direction of the presiding judge, addressed a letter to appellants' attorneys calling upon appellants to furnish the Court by 2 January 1998 with: (i) An index in which is reflected not only the current pagination

but also the original pagination. (ii) An index in which current pagination (by volume and page) of

each reference to exhibits or other documents contained in the

oral evidence is given. In other words, a judge reading the oral

evidence should have a page reference to other parts of the

current record to which reference is made.

On 5 January 1998 appellants' attorneys, in response to

10 paragraph (i) above, filed a second index. It should be understood

that in fact the members of the Court only receive documents of this

nature sometime later. That index contained references to the trial

bundles and identified where documents contained therein were to be

found in the record so that it was, subject to what follows, of some

assistance. But it soon again became clear that this index too was

defective. This is so notably in regard to documents which were

contained in trial bundles B and C. It was only in the second index

that the bundles are listed. In so far as bundle B is concerned, the last

document listed is reflected as having been numbered in the original

numbering as page 472. In the evidence there are many references to

documents at later pages in the bundle - for example at p 1140 there

is a reference to page 494 of the bundle and at p 1193 to page 491 of

the bundle. Obviously a substantial portion of the bundle had simply

not been included in the record. The problem with Bundle C was

even more acute.

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On the other hand a large number of unnecessary documents were (contrary toRule 5(12))included and there are numerous duplications. The index to the oral evidence omitted to state where the evidence in chief, the cross-examination and the re-examination of each witness commenced and ended. Again these are merely illustrative examples of the defects in the record. Many more could be cited but for the reason already given this is unnecessary.

Rule 5(12))

Finally on 30 January 1998 appellants lodged with the registrar a 22 page document which purported to meet the request in paragraph (ii) of the registrar's letter of 22 December 1997 - the appeal being on the roll for 16 and 17 February 1998. This was accompanied by a petition dated 29 January 1998 seeking condonation for the late filing of a yet further addition to the record being Volume 26. The respondent in heads of argument handed up (but not argued because of appellant's concession) dealt with this last index and referred to correspondence which shows that it (the respondent) was asked to

12 assist in checking the correctness of the index - a task it apparently

agreed to undertake. In the heads it is submitted that a considerable

number of inaccuracies and duplications were found in the document

by respondent, reported to appellants but not corrected by appellants

in the document filed with the Court. It is unnecessary to consider the

correctness of these assertions. What has been demonstrated overall

is a woeful failure on the appellants' part to lodge a proper record.

On 6 February 1998 the registrar at the direction of the

presiding judge gave the parties notice that counsel should be ready

to argue on 16 February:

"1) Whether the appeal should be struck from the roll because of the state of the appeal record at various stages.

2) Whether an appropriate costs order should be made depending on the answer to question 1."

I have referred to counsel for the appellants' concession. It was not, so counsel argued, also a concession that the appeal should be

13 struck from the roll. Respondent's counsel argued that this course

was the appropriate course to follow. Such an order, if made, would not necessarily finally close the door to appellants as appellants could avail themselves ofRule 13in order to seek condonation and the reinstatement of the appeal.

Rule 13

In Federated Employers Fire and General Insurance Co Ltd and Another v McKenzie1969 (3) SA 360(A) at 362 F-G Holmes JA said:

1969 (3) SA 360

"In considering petitions for condonation underRule 13, the factors usually weighed by the Court include the degree of non-compliance, the explanation therefore, the importance of the case, the prospects of success, the respondent's interest in finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice."

The present situation is comparable to that which arises underRule 13.The degree of non-compliance is clearly serious and the explanation or excuse not particularly compelling, the appeals of other parties who have complied with the rules have been delayed and

Rule 13.

14 the time of five judges wasted. But the failure is the failure of the

persons responsible for the preparation of the record and not the

appellants themselves. While their efforts to prepare a proper record

were unavailing they were at least dogged. Appellants have

furthermore at all times evidenced an intention to pursue the appeal

by all means open to them. Whether their prospects of success are or

are not good cannot be determined on the record now available but

there is at least the consideration that the court a quo did not wholly

discount them and granted leave to appeal.

The respondent obviously has a very real interest in obtaining

finality and has, up to this point, been unable to enforce the interdict.

But, this notwithstanding, the present situation is one calling for a

practical solution. Counsel for the appellants, recognising his

difficulties, urged that we postpone the appeal and make such orders

as are appropriate to counter prejudice to respondent. He, in this

regard, tendered the wasted costs (on whatever scale the Court saw fit

15 to make such an award) and he agreed on appellants' behalf to waive

the suspension of the interdict which flowed from the noting of the

appeal.

There is a real prospect that finality will be achieved sooner if this course is followed than would, in all likelihood, be the case if the appeal were struck from the roll. This factor, in the final analysis, is what has dictated the Court's order. These then are the Court's reasons.

The case however must serve as a very clear warning to litigants. This Court has in the past had occasion to warn litigants of the consequences of a failure to comply with the rules. See for example: Lafrenz (Pty) Ltd v Dempers1962 (3) SA 492(A) at 497H; Government of the Republic of South Africa v Maskam Boukontrakteurs (Edms) Bpk1984 (1) SA 680(A) at 692H - 693A; Blumenthal and Another v Thompson NO and Another[1993] ZASCA 190;1994 (2) SA 118(A) and McKenzies's case (supra). Litigants who do not in future

1962 (3) SA 492

1984 (1) SA 680

[1993] ZASCA 190

1994 (2) SA 118

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follow the rules fully and intelligently will run the risk of being

debarred from proceeding with their appeals.

C PLEWMAN JA

CONCUR

VAN HEERDEN DCJ) MARAIS JA) SCHUTZ JA)

SCOTT JA)