Darries v Sheriff, Magistrate's Court, Wynberg, and Another

• Jurisdiction: South Africa
• Judge: Hefer JA, Eksteen JA, Olivier JA, Plewman JA, Melunsky AJA
• Judgment Date: 25 March 1998
• Citation: 1998 (3) SA 34 (SCA)
• Docket Number: 25/96
• Hearing Date: 17 March 1998
• Counsel: KH Warner for the appellant JL Abel for the respondent
• Court: Supreme Court of Appeal

Plewman JA:

The petitioner's applications for condonation of the late filing of the notice of appeal, of the late filing of a power of attorney and of the late furnishing of security were dismissed with costs on 17 March 1998. H In so ordering the Court also ordered that such costs include the respondent's costs on appeal and of such costs the costs of the applications for condonation were to be paid by appellant's attorneys, Papier, Charles and Associates, de bonis propriis. It was intimated that the Court's reasons would be furnished later. These reasons now follow. I

A brief reference to the facts of the case must be made. Appellant is a cabinet maker. He conducted his business from hired premises. In 1991 he fell into arrear with his rent. He also fell into debt. Judgments were granted against him in the Wynberg magistrate's court in respect of his debt and for his ejectment from the leased premises - a factory.

The respondents are the sheriff and deputy sheriff respectively for the area. In August 1991 the clerk of the court, pursuant to the judgments, J

Plewman JA

issued (a) a warrant of execution authorising the seizure of sufficient property of appellant to satisfy the judgment A debt of some R16 449,20 and (b) a warrant of ejectment. The warrant of ejectment authorised and requested the sheriff to put the plaintiff in the ejectment proceedings into possession of the premises described in the warrant as Factory No 3, Protea Road, Phillipi. It was common cause that the warrants were validly and B properly issued. On 15 and 16 August 1991 the second respondent (to whom I will refer simply as 'the sheriff') proceeded to execute both warrants. He found the factory unattended and locked. It was one of several factories in a complex. The complex was sited in what is described as a compound. It was surrounded by a security fence C and access was obtained via a gate in the security fence. The sheriff, since he found no one in charge of the factory, had to break the door lock to gain access to the factory. He laid under attachment under the warrant of execution and removed from the premises to his own warehouse for storage pending the sale thereof a large number of articles of equipment and machinery in order to satisfy the judgment debt. What remained of D appellant's belongings he deposited outside the factory and some 10 or 15 meters from the main door but within the compound. The litigation related to goods other than those placed under attachment in execution. Certain of these (so it was alleged) were removed by '. . . persons whose identities (were) to the (appellant) unknown'. E

The claim, in essence, was founded upon an allegation that the sheriff '. . . by permitting the aforesaid other unknown persons to remove some of the said goods acted unlawfully and wilfully alternatively negligently in the execution of his duties as deputy sheriff'. At the close of the evidence of both parties Motala AJ ordered F absolution from the instance and awarded respondents their costs. On 12 December 1995 leave to appeal to this Court was granted.

Appellant was at all times represented by Mr Charles of the firm referred to above. He failed to prosecute the appeal in accordance with the procedure prescribed by the Rules of this Court. This resulted in appellant filing G three (separate) petitions seeking orders condoning the failure to comply with the Rules I now discuss.

The first Rule with which the Court is concerned is Rule 5(1) - which obliged appellant to lodge a notice of appeal, within 20 days of the order granting leave to appeal, in which it was stated whether the whole or part only of the judgment was appealed against and, if part only, then what part. This period, extended because of H public holidays, elapsed (at the latest) on 11 January 1996. The notice of appeal was actually lodged on 22 January 1996 - some 11 days late. The petition for condonation was filed on 30 January 1996.

The next is Rule 5(3)(b). This obliged the attorney representing the appellant to lodge with the Registrar a power I of attorney, authorising him to prosecute the appeal, within 20 days of the lodging of the notice of appeal. This 20-day period elapsed (at the latest) on 9 February 1996. The date upon which the power of attorney was actually lodged with this Court does not appear from the petition but it was only signed in Cape Town on 27 February 1996. The petition was filed on 6 March 1996. J

Plewman JA

The third Rule with which the Court is concerned is Rule 6(2). This must be read with Rule 5(4). Rule 5(4) A obliged the appellant after the appeal had been noted, to lodge with the Registrar six copies of the record of the proceedings in the Court appealed from within three months of the date of the order granting leave to appeal (a B period which could be extended by an agreement in writing with the other parties). The Registrar's date stamp on the record is 6 May 1996. I will accept this as the date of the lodging of the record. It appears from the Court file (though there is no mention of the fact in the affidavits filed in support of the petitions) that the explanation for what would otherwise have been late filing is to be found in an agreement between the parties to extend the C period. Rule 6(2) obliges an appellant before lodging the record with the Registrar to enter into good and sufficient security for the respondents' costs of appeal. This means that security had to be provided (at the latest) by 6...