Beira v Raphaely-Weiner and Others

• Jurisdiction: South Africa
• Judge: Harms JA, Vivier JA, Nienaber JA and Harms JA
• Judgment Date: 30 May 1997
• Citation: 1997 (4) SA 332 (SCA)
• Docket Number: 642/96 Pet Nos 643/96, 130/97, 131/97, 164/97, 165/97
• Hearing Date: 28 May 1997
• Counsel: C M Eloff for the first respondent R Meyer for the second and third respondents
• Court: Supreme Court of Appeal

Harms J A:

The petitioner wishes to appeal against a final order of sequestration of his estate made by De Klerk J in the Witwatersrand Local Division on 11 August 1992. A notice of appeal was lodged with the Registrar of this Court more than four years later, namely on 19 December 1996. Mindful of the fact that he had failed to comply with a number of the Rules of D Court, and indeed with certain provisions of the Supreme Court Act 59 of 1959, the petitioner filed five petitions:

1.

An application dated 18 December 1996 for condonation of the late filing of the notice of appeal.

2.

A petition filed on 27 March 1997 for condonation of the late filing of the record. The record was lodged simultaneously with the petition. E

3.

A further petition filed on 27 March 1997 in which, on the one hand, condonation of the failure to provide security for the respondent's costs is sought, and, on the other hand, the Court is requested to waive security. F

4.

A petition for leave to adduce further evidence or for remitting the matter back for oral evidence on the new matter, of 6 April 1997.

5.

A petition seeking leave to proceed in forma pauperis, dated 7 April 1997.

At the time of the final sequestration order (11 August 1992) the appellant had an automatic G right of appeal to this Court, ie without any leave to appeal (Fourie v Drakensberg Koöperasie Bpk 1988 (3) SA 466 (A)). This right had to be exercised within 21 days (s 150(2) of the Insolvency Act 24 of 1936 read with s 21 of the Supreme Court Act 59 of 1959). The petitioner did not exercise his right but, instead, applied to the Judge a quo for leave to appeal. De Klerk J, quite correctly, struck the application from the roll as an irregular H proceeding and hence a nullity.

The next ill-fated step taken by the petitioner was an application for the rescission of the last-mentioned order of De Klerk J on the ground that he had not received notice of the I set-down of his own application. During the course of that application his attorney advised him (on 2 March 1993) of his right of appeal and his obligation to apply for condonation for the late filing of the notice of appeal. The petitioner, for reasons not disclosed on the papers, did not follow this advice nor did he proceed with the rescission application.

Because of an amendment to s 150(1) of the Insolvency Act, the automatic right to appeal against a final sequestration order was abolished J

Harms J A

from 1 September 1993. Whether the petitioner was still entitled to file a notice of appeal A without the prior leave to appeal of the Court a quo or this Court (cf National Union of Metalworkers of South Africa v Jumbo Products CC 1996 (4) SA 735 (A) at 740A–D) and whether petition No 1 is for this reason alone fatally defective need not be decided in the light of what follows. I should preface what follows by stating that the judgment is based upon B the facts stated in the record and that the petitioner's gratuitous amplification during argument was discounted, as it had to be.

I propose to deal with petition No 1 purely as a petition for condonation. In that regard three C dates are of importance: that of the order of sequestration (11 August 1992), the occasion when the petitioner was informed of his rights and obligations concerning an appeal (2 March 1993) and the date of petition No 1 (18 December 1996). There is no explanation on the papers for the delay between the second and the third dates. In the circumstances of this case this is fatal, even should there be prospects of success, because an application for condonation D must be made as soon as it is realised that the Rules have not been complied with; the petitioner is required to give a full and satisfactory explanation for whatever delays have occurred; and the respondent's interest in the finality of the judgment is a factor which weighs with the Court (cf Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281C–282A). And, E appeals against orders for sequestration...