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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE No: 14848/05

In the matter between:

BARRY DU PLESSIS FIRST APPELLANT

HESTER DU PLESSIS SECOND APPELLANT

And

QUEEN MJWARA FIRST RESPONDENT

DUMISANI NENE SECOND RESPONDENT

JUDGMENT

Mavundla J,

[1] On the 31 July 2007 I dismissed an application for rescission which had been brought by the applicants. The appellants are now approaching this Court for condonation for the late filing of the application for leave to appeal. Where I refer to applicants, it must be understood that I am referring to the appellants. 1 will be referring to them as such since the appellants are also applying for condonation for the late filing of the application for leave to appeal.

[2] The Uniform Rules of the High Court provide that leave for appeal should be brought within 15 days after judgment is granted, provided the Court may extend upon good cause shown the period of 15 days, vide Rule 49(1)(b).

[3] In casu, the application for leave to appeal together with the application for condonation for the late filing thereof were filed with the Registrar on the 21 August 2008. The application for condonation is accompanied by the affidavit deposed to by the first applicant, who is bringing the application in his own behalf as well as on behalf of the second applicant. Attached to his affidavit are the confirmatory affidavits by his current attorneys of record, as well by the partner of his previous firm of attorneys.

[4] In the matter of Blumenthal and Another v Thomson NO and Another¹ the Appeal Court said:

"Factors which usually weigh with this Court in considering applications for condonation have been summarised in Federated Employers Fire & General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A) at 362G to

'include the degree of non-compliance, the explanation therefore, the importance of the case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice...' At page 121I-J, after considering the facts of that particular case and in particular the circumstances relating to the delay of ten months in bringing the application for condonation and the explanation for the delay, the Appeal Court said that irrespective the prospects of the appeal concluded that there was no satisfactory explanation for such a long delay and said:

"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 even be refused where 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 (AD) at 859E-F. As I have said, the facts in casu show that the Rules were flagrantly breached; nor is there any acceptable explanation for such breaches. In these circumstances it is unnecessary to make an assessment of the prospects of success since the cumulative effect of the factors already mentioned, including the first respondent's interest in the finality of the Court a quo's judgment, is such as to render the application for condonation unworthy of consideration (see too Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 13II-J and Ferreira's case supra at 281J-282A)."

[5] In the matter of 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 859E-F Nestadt JA said that:

"This Court has often said that in case 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 where the blame lies solely with the attorney (see P.E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd (Pty) Ltd 1980 (4) SA 794 (A) at 799D-H)."

[6] In Napier v Tsapera²s the Appeal Court said: ""For present purposes it suffices to say that there appear to be several weaknesses in the explanations offered for the late lodging of the record, and that the Court, in deciding on condonation, may also have regard to the appellant's failure to bring the application timeoulsy. In Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G it said that an appellant, when he realises that he has not complied with a Rule of Court, should apply for condonation without delay. His inactions may also be relevant, in my view, when he should have realised, but did not, that he has not complied with a Rule. The matters to be taken into account in an application for condonation include the respondent's interest in the finality of a judgment, last but not least, the convenience of the Court. See Federated Employers Fire & General Insurance Co Ltd and Another v McKenzie 1963 (3) SA 360 (A) at 362G and Blumenthal and Another v Thomson NO and Another [1993] ZASCA 190; 1994 (2) SA 118(A) at 120F."

[7] The applicants moved home during May 2007. The applicants do not explaining what steps they took between the period May 2007 and June 2007 with regard to communicating with their attorneys. They also do not explain why they did not communicate with their attorney between the period June 2007 and March 2008³.

[8] I was referred to the matter of Mopicon Construction CC v Van Jaarsveld & Heyns⁴ where Motata J said: "In deciding whether or not to grant condonation, the learned magistrate should have kept in mind the drastic nature of a summary judgment procedure, See First National Bank of SA Ltd v Myburgh and Another⁵.

It is my opinion that the magistrate should have therefore been more sympathetic towards granting condonation. This would have had the result that the appellant, who has a bona fide defence, could have had his case fairly heard."

[9] The applicants have not satisfied me why the application for leave to appeal was not brought between July 2007 and May 2008. In May 2008 the applicants moved home.⁶ The applicants are vague as to precisely when did the new occupants of their previous house bring to them the correspondence delivered at their previous home. The applicants, in my view, must have known that their application for rescission was to be heard on 31 July 2007. It is to be expected that they would have been aware of the outcome thereof much earlier than they profess, if indeed they have been keeping in contact with their then attorney.

[10] I am conscious of the draconian nature of a summary judgment.

However, the issue in this case at this point in time, is not about the summary judgment, but about whether condonation for the late filing of the leave to appeal, in the exercise of my discretion should be granted.

[11] In my view, it was not enough for the applicants to content themselves with a mere telephonic communication with their attorneys. Applications for rescission cannot be settled through telephone calls. The applicants should have made an effort to present themselves at the offices of their attorneys. The applicants are silent as to when they would have given instructions to their attorney to bring the application for leave to appeal. The applicants are further vague about the dates when they contacted their attorneys at the earliest opportunity. I am therefore of the view that the applicants have not placed sufficient reasons to sway me that the delay was not as a result of any doing on their part. I am of the view that in casu, the blame for the delay is to be placed squarely at the door of the applicants and not the attorneys. I am of the view that the application for condonation must be refused. Consequently, I consider it not necessary to deal with the prospects of success of the appeal.⁷

[11] Consequently, I make the following order:

1. That the application for condonation and leave to appeal is dismissed;

2. That the applicants are ordered, jointly and severally, the one paying, the other to be absolved to pay the party and party cost of this application.

N.M. MAVUNDLA

JUDGE OF THE COURT

HEARD ON THE : 02 OCTOBER 2008.

DATE OF JUDGEMENT: 16 OCTOBER 2008.

APPELLANTS' ATT: VAN DEN BERG ATTORNEYS.

APPELLANTS ADV: MR. KOK.

RESPONDENT'S ATT: MOLEMA MAMPURU INC.

RESPONDENT'S ADV: MR. MAMPURU.

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