Blumenthal and Another v Thomson NO and Another

• Jurisdiction: South Africa
• Judge: Joubert JA, Nestadt JA, Eksteen JA, Howie AJA and Kriegler AJA
• Judgment Date: 30 November 1993
• Docket Number: 462/92
• Court: Appellate Division
• Hearing Date: 05 November 1993
• Citation: 1994 (2) SA 118 (A)

Joubert JA:

On 5 November 1993 this Court granted an order (a) dis- missing with costs an application by the appellants for condonation of (1) the late filing of the notice of appeal with the Registrar of this Court, B and the failure to serve it timeously on the first respondent, (2) the late filing of the necessary power of attorney, (3) the late furnishing of security for costs and (4) the late filing of the record. The Court also ordered (b) the first respondent's costs of appeal to be paid by the first and second appellants. In both instances (a) and (b) the costs were ordered to include the costs of two counsel. (I may add in parentheses C that the third and fourth appellants were not parties to the application for condonation, since they have reached a settlement with the first respondent in consequence of which they are no longer parties to the appeal against the judgment of the Court a quo.) This Court also intimated that its reasons for granting the orders would be filed later. The reasons now follow. D

At the outset I feel constrained to record my utter disapproval of the unwieldy nature of the entire collection of separate documents which comprise the application. They have not been bound collectively in a separate cover. Nor have they as a single body been paginated consecutively with an index. To find one's way about them is a E frustrating, annoying and time-consuming experience like entering an intricate labyrinth without an experienced guide.

In the Transvaal Provincial Division Schabort J on 4 May 1990 dismissed the plaintiffs' action with costs. On 5 September 1990 the Court a quo granted all the plaintiffs leave to appeal to this Court.

The appellants now petition this Court for an order condoning: F

(1)

the late filing of the notice of appeal with the Registrar of this Court and the failure to serve one on the second respondent;

(2)

the failure to file the necessary power of attorney;

(3)

the late filing of the record; and

(4)

the late furnishing of security for costs. G

The first respondent opposed the grant of the relief claimed on the following grounds:

(1)

the gross acts or failures by the first and second appellants as well as their attorneys to prosecute the appeal as required by the Rules of this Court;

(2)

H their failure to prosecute the appeal properly delayed and prejudiced the timeous liquidation and distribution of the estate of the late Abram Thomson who died on 30 September 1984; and

(3)

the absence of reasonable prospects of success on appeal.

Let us examine the nature of non-compliance with the Rules of this Court in the instant matter:

1.

I Appellate Division Rule 5(1)(a) requires a notice of appeal to be filed with the Registrar of this Court within 20 days after an order for leave to appeal has been granted, ie within 20 days after 5 September 1990 in this matter. On 25 September 1990 a...