Ferreira v Ntshingila

• Jurisdiction: South Africa

Ferreira v Ntshingila
1990 (4) SA 271 (A)

1990 (4) SA p271

Citation	1990 (4) SA 271 (A)
Court	Appellate Division
Judge	Hefer JA, Nestadt JA, Friedman AJA
Heard	November 21, 1989
Judgment	November 30, 1989

Flynote : Sleutelwoorde B

Appeal — Prosecution of — Proper prosecution of — Failure to comply with Rules of Court — Application for condonation — To be made as soon as party concerned realises Rules not complied with — Negligence on part of litigant's attorney not necessarily exonerating litigant — Attorney bound to acquaint himself with Rules of Court in which appeal C to be prosecuted — As condonation is an indulgence, full and satisfactory explanation for delays required to be given — Respondent's interest in finality of his judgment a factor which weighs with Court — Condonation refused where breach of Rules flagrant and gross, even where appeal on the merits not without merit. D

Headnote : Kopnota

Where there has, in an appeal, been non-compliance with the Rules of Court, an application for condonation is required to be made as soon as the party concerned realises that the Rules have not been complied with. Negligence on the part of a litigant's attorney will not necessarily exonerate the litigant, and litigants and their attorneys should heed the 'oft-repeated judicial warning that there is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered'. An attorney E instructed to note an appeal is in duty bound to acquaint himself with the Rules of Court in which the appeal is to be prosecuted. Inasmuch as an applicant for condonation is seeking an indulgence from the Court, he is required to give a full and satisfactory explanation for whatever delays have occurred. The respondent's interest in the finality of his judgment is a factor which weighs with the Court - the fact that the time for noting an appeal has elapsed prima facie entitles him to adjust F his affairs on that footing.

The Court in the present matter refused an application for condonation of the breach of various provisions of the Rules of the Appellate Division where, as far as the prospects of success on appeal were concerned, the Court found that the appeal appeared not to be without merit, but that the non-observance of the Rules had been so flagrant and gross that the application for condonation should not be granted whatever the prospects of success might be.

The decision in the Witwatersrand Local Division in Ntshingila v G Ferreira confirmed.

1990 (4) SA p272

Case Information

Application for the condonation of the late observance of certain provisions of the Rules of the A Appellate Division. The facts appear from the judgment of Friedman AJA.

S M Katzew for the applicant referred to the following authorities: Mabaso v Felix 1981 (3) SA 865 (A); Boberg The Law of Delict vol I at 787 - 812; Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C) B ; S v Rall 1982 (1) SA 828 (A).

N B Tuchten for the respondent referred to the following authorities: Wapnick and Another v Durban City Garage and Others 1984 (2) SA 414 (D) at 420D - E; Dzvairo v Mudoti 1973 (3) SA 287 (RA) at 288H; Powell v Jonker 1959 (4) SA 443 (T) at 444C - E; Blou v Rose-Innes 1914 TPD 102 at C 104; Bester v Calitz 1982 (3) SA 864 (D) at 879F - 880F; Boberg The Law of Delict vol I at 827 - 9; Kruger v Van der Merwe 1966 (2) SA 266 (A) at 271D - 273H; S v Motau 1968 (4) SA 670 (A) at 676H - 678D; Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N) at 913A - B; Kruger v Coetzee 1966 (2) SA 428 (A) at 430E - G; P E D Bosman Transport Works Committee v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A); De Beer en Andere v Western Bank Ltd 1981 (4) SA 255 (A); Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA 773 (A) at 788B - 789F.

[The application for condonation was dismissed and the following E reasons for judgment handed down on 30 November 1989.]

Judgment

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

1990 (4) SA p273

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.'

1990 (4) SA p274

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...