Ferreira v Ntshingila

• Jurisdiction: South Africa
• Judge: Hefer JA, Nestadt JA, Friedman AJA
• Judgment Date: 30 November 1989
• Hearing Date: 21 November 1989
• Court: Appellate Division

Friedman AJA:

On 21 November 1989 this Court made an order dismissing with costs an application for the condonation of the late noting of an appeal and an application for the condonation of the late filing of the F record and the late furnishing of security, and ordering that the costs were to include the respondent's costs of appeal. The Court indicated that reasons would follow. These are the reasons.

On 17 February 1980 Paulus Mahlangu (hereinafter referred to as the 'deceased') was shot and killed by the applicant. The respondent who was a partner to a customary union, as defined in s 35 of the Black G Administration Act 38 of 1927, with the deceased, sued the applicant for damages in the Witwatersrand Local Division in her personal capacity as well as in her capacity as mother and natural guardian of the three minor children born of the customary union between herself and the deceased. For convenience I shall refer to the applicant and the H respondent as defendant and plaintiff respectively.

The defendant admitted in his plea that he had shot and killed the deceased, but pleaded that he had acted in self-defence.

The only issue at the trial was whether the killing of the deceased was justified. The trial Court (Coetzee AJP) found that it was not and granted judgment in favour of the plaintiff in the agreed sum of R13 022 I with costs. An application for leave to appeal against this judgment was refused by the Court a quo but, on petition to the Chief Justice, leave to appeal to this Court was granted.

The plaintiff failed to file his notice of appeal timeously. He also failed to file the record or to furnish security within the time limits prescribed by the Rules of Court. His applications to condone the late J noting of the

Friedman AJA

A appeal as well as the late filing of the record and the late furnishing of security, were opposed by the plaintiff.

It was common cause at the trial, and rightly so in view of the decision of this Court in Mabaso v Felix 1981 (3) SA 865 (A), that the onus was on the defendant to prove that the fatal shooting of the deceased was justified.

The learned Judge found that the deceased's attack upon the defendant B was unlawful. He was, however, not satisfied that there was no other reasonable alternative open to the defendant, except to kill the deceased. Judgment was accordingly granted in favour of the plaintiff with costs, on 20 November 1985.

The history of the matter from the date of judgment until leave to appeal was obtained sets the scene for what subsequently occurred and C what led to the defendant having to make two applications for condonation. On 2 December 1985 the defendant's attorneys, who were at that stage Messrs Goosen and Goosen of Johannesburg, filed a notice of application for leave to appeal. On 5 December 1985 the Registrar of the Witwatersrand Local Division wrote to the defendant's attorneys advising D them that a date for the hearing of the application for leave to appeal would not be arranged until the judgment had been transcribed and filed in the Court records. The defendant's attorneys were told to advise the Registrar as soon as the judgment was filed. On 16 January 1986, by which date Messrs Goosen and Goosen had been replaced by Mr Clifford St John Wills, the latter wrote to the plaintiff's attorneys stating that E he had been instructed by the defendant to proceed with an appeal against the judgment of the Court a quo. By 3 March 1986 nothing had been done in the matter; the plaintiff's attorneys accordingly addressed a letter to defendant's attorney on that date enquiring what steps were being taken to prosecute the appeal. This letter met with no response. F The plaintiff's attorneys accordingly addressed a further letter to the defendant's attorney dated 27 May 1986, enquiring what had been done and requesting an urgent reply. This letter likewise met with no response. The plaintiff's attorneys accordingly addressed a further letter to the defendant's attorney on 8 July 1986 stating that they would be pleased to learn, as a matter of urgency, what steps had been taken with regard G to prosecuting the appeal. The plaintiff's attorneys stated further:

'Should we not hear from you within seven days from date hereof, we shall apply to the Court for leave to execute on the judgment pending the outcome of the appeal.'

H On 29 July 1986 the defendant's attorney, Mr Wills, advised Mr Hoyland of plaintiff's attorneys, telephonically, that the defendant intended to proceed with the appeal but that he was waiting for the defendant to supply him with funds. On 30 July 1986 Mr Hoyland addressed a letter to the defendant's attorney referring to the telephone conversation of the previous day and stating: I

'We have received a memorandum from the Supreme Court to the effect that the application for leave to appeal will not be arranged until the judgment has been transcribed and filed in the Court records. Should we not receive confirmation from yourselves that the judgment has been transcribed and filed by no later than 29 August 1986 we shall forthwith apply to execute on the judgment pending the appeal. Kindly give this J matter your most urgent attention.'

Friedman AJA

A Notwithstanding the defendant's attorney's intimation that he intended to proceed with the appeal and notwithstanding Mr Hoyland's threat to apply for leave to execute on the judgment, nothing was heard from the defendant's attorney. Mr Hoyland accordingly addressed a further letter dated 1 October 1986 to the defendant's attorney, advising him that as he had not received any indication that the judgment had been filed he B was proceeding to launch an application for execution of the judgment. In response to this letter Mr Hoyland received a telephone call from one Linda Oosthuizen, an articled clerk in the employ of the defendant's attorney, requesting a further extension of two weeks in order to enable the necessary steps to be taken to prosecute the application for leave C to appeal. That request was made on 7 October 1986, as appears from Mr Hoyland's letter to the defendant's attorney dated 24 October 1986. By the latter date nothing had been done and in his letter dated 24 October 1986 Mr Hoyland stated:

'Unless we have written confirmation from yourself that the appeal has D been proceeded with, that steps have been taken to obtain a date for the hearing of the application for leave to appeal and that a copy of the record has been obtained within seven days from date hereof we shall proceed without further notice to you.

We confirm that this is our final extension and no further extensions in time will be entertained.'

The application for leave to appeal was eventually heard on 28 E November 1986 and was dismissed. In his judgment dismissing the application Coetzee AJP described as unsatisfactory the fact that more than a year had elapsed since the judgment had been given. He also stated that it appeared from the papers that the Registrar had written to the defendant's attorney asking what the defendant's intention was and that it has taken two months for the defendant's attorney to reply to that letter. F

The application for leave to appeal having been refused by the Court a quo, a petition for leave to appeal was filed with this Court on 19 December 1986. Mr Hoyland states in his opposing affidavit to the application for condonation of the late noting of the appeal that he was advised by his Bloemfontein correspondents that the petition would not G be considered until such time as the Court a quo's reasons for refusing leave to appeal had been furnished. In view of the lengthy delay which had already taken place he took it upon himself to obtain, at his firm's expense, a copy of the judgment dismissing the application for leave to appeal and forwarded it to the defendant's attorney in order to assist H in speeding the proceedings up. A copy of that...