Dickinson and Another v Fisher's Executors

• Jurisdiction: South Africa
• Judge: Innes ACJ, Solomon JA and CG Maasdorp Acting JA
• Judgment Date: 16 September 1914
• Hearing Date: 15 September 1914
• Court: Appellate Division

Innes, A.C.J.:

The applicants are desirous of appealing from a decision of the Natal Provincial Division; but the record has not been filed within the prescribed time; and we are asked to grant indulgence and to allow it to be filed now. Two causes are put forward as accounting for the delay. Certain correspondence took place between the solicitors with a view to the presentation of the

Innes, A.C.J.

matter to this Court in the most economical form, and when no agreement could be reached upon that point, and the record was placed in the hands of the printer, delay, it is said, ensued owing to a rush of printing work, due to local circumstances. The reasons thus suggested are certainly not strong, for the affidavits show that, making all due allowance for legitimate delay, there still remained sufficient time for the completion of the record within the period fixed by the rules. We were referred, however, to a number of cases in which relief had been granted to parties who we re not in time, and it was argued that this matter fell within the principle of those decisions. Now it is impossible to lay down any general rule with regard to applications like the present. But in all the cases quoted, the appellant, if indulgence had been refused, would have been permanently deprived of the right of appeal. That is not so in this instance, as I shall presently show. If the refusal of the application before us would cause any grave hardship or disability to the applicants, the Court might be inclined, if it had the power, to stretch a point in their favour. But an examination of the record shows not only that the applicants are in no danger of losing their right of appeal, but that the endeavour to bring the ruling of the Natal Provincial Division in review before us at this stage is premature.

The matter came up below by way of motion to have an award made a rule of court, and a cross motion to have it set aside. The point to be decided, therefore was whether the award was bad, more especially by reason of a recital in the document which implied that the partnership of which the present parties, and one Fisher were members, had terminated on the death of the latter. It was contended by the present applicants that in order to decide upon the validity of the award, the Court should have regard to all the evidence led at the arbitration. The respondents, on the other hand, maintained that only the award itself, and the deed of...