Cairns' Executors v Gaarn

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J and Solomon J
• Judgment Date: 04 April 1912
• Hearing Date: 26 March 1912
• Court: Appellate Division

Lord De Villiers, C.J.:

I am of opinion that this application should be refused with costs, for the reasons given by my brother INNES.

Judgment

Innes, J.:

This matter raises an interesting point of practice. The applicants desire to appeal against a de-

Innes, J.

cision of the Eastern Districts Local Division, pronounced fifteen months ago. They are out of time both as regards the noting and the prosecution of the appeal. And their request is that the Court may now excuse them from compliance with the terms of the rule prescribing definite periods for both these steps.

The power of extending the time for appeals is one which the Courts of Holland would seem to have exercised by virtue of an inherent discretion. The normal period allowed by Dutch practice was ten days. But the Superior Courts granted, restitution ex justis causis against a further lapse of time. And according to Voet 49, 4, 4) and other authorities, such relief was readily accorded. In South Africa the matter has been generally dealt with by Statute or rule, the terms of which have sometimes operated to prevent the Courts from giving effect to the lenient practice of the Common Law. The Cape Act 21 of 1876, for example, provided that appeals from the decisions of magistrates in criminal cases, if not prosecuted within a certain time, should lapse, and that the convictions should thereupon become final. The Supreme Court held that its discretion to grant relief in proper was not thereby taken away. But in view of the language of the statute it felt unable to allow an extension of time save under very special circumstances (Rex v Botha, 16 S.C. Rep., 101). Again, the Transvaal rules enacted that magistrates' appeals in civil cases should lapse on non-prosecution within a defined period, unless relief was granted on good cause shown. And the Supreme Court of that Province felt its discretion with regard to applications for extension of time materially restricted by such provisions (Cohen Bros. v Samuels, T.S. 1906, p. 221).

We are concerned in the present instance with two rules framed under the provisions of section 107 of the South Africa Act. The first directs that every appeal shall be noted within twenty-one days, and shall be set down for hearing within three months from the date of judgment appealed against. The second provides that the Appellate Division may, for sufficient cause shown, excuse any party from compliance with the requirements

Innes, J.

of the earlier rule. The language used is very general, and leaves to this Court it wider discretion than that allowed under some of the statutory and other Provisions to which reference has already been made. But still its effect is to throw upon the applicant in each instance the duty of making out a case for relief. The time prescribed for appeal having lapsed, the successful party has an interest in the judgment of which his opponent can only deprive him by satisfying the Court that "sufficient cause" exists to justify the favourable exercise of its discretion under the rule. With regard to the expression "sufficient cause," I do not think it can be properly taken to mean merely sufficient cause for the delay. It seems to me to be used in at wider sense, is covering any cause sufficient to justify the Court in granting relief from the operation of the earlier rule. Cases might conceivably arise so special in their circumstances that, in spite of abnormal delay, the Court would feel bound to assist the applicant. But on the other hand the length of the delay and its cause must always be important (in many cases the most important) elements to be considered in arriving at a conclusion. It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the rules have purposely made very extensive, and which it is highly desirable not to abridge. All that can be said is that the applicant must show, in the words of COTTON, L.J. (In re Manchester Economic Society, 24 Ch.D., at p. 498), "something which entitles him to ask for the indulgence of the Court." What that something is must be decided upon the circumstances of each particular application.

What are the facts of the present case? The trial Court decided (adversely to the contention of the applicants) that a child born in Scotland of parents subsequently domiciled in South Africa was entitled to a legitim in respect of her parent's estate, acquired and...