HB Farming Estate (Pty) Ltd and Another v Legal and General Assurance Society Ltd

• Jurisdiction: South Africa
• Judge: Margo J, Nestadt J and Preiss J
• Judgment Date: 07 November 1980
• Court: Transvaal Provincial Division
• Hearing Date: 17 September 1980
• Citation: 1981 (3) SA 129 (T)

Margo, J.:

The appellants brought an application in the Witwatersrand Local Division for an order declaring that the respondent was obliged to indemnify them under a public liability policy for an alleged liability to a third party, H J Roodt. The respondent resisted the application. It contended that any such liability was outside the scope of the risk covered by the policy. The Court a quo dismissed the application with costs, and the appeal before us is against that order.

The original notice of appeal (if such it was) failed to comply with the requirements of Rule of Court 49 (4), in that it did not specify the

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findings of fact and rulings of law appealed against, and the grounds upon which the appeal was founded. A new notice was tendered, but out of time. A Furthermore, although application was made to the Registrar for a date for the hearing of the appeal, that was not done within the two months prescribed by Rule 49 (6) (a) as amended for the Transvaal Provincial Division by para 6 of Government Notice R1313 of 15 July 1977. Nor was the record handed in simultaneously with the application for a date, as B required by Rule 49 (8) as amended. Another material omission was that, although security for the costs of the appeal was eventually provided, that was not done before the lodging of copies of the appeal record, as required by Rule 49 (12).

At the hearing the appellants applied in one application for condonation of the failures to comply with Rule 49 (4), Rule 49 (6) (a) and Rule 49 C (8), and in a second application for condonation of the failure to comply with Rule 49 (12). The respondent opposed both applications. For reasons which were to be handed down later, we grated both applications, and ordered the appellants to pay the costs thereof. These are the reasons.

The explanation for the defective notice of appeal was that the D appellants' attorney in Johannesburg briefed counsel to settle it (apparently not the counsel who appeared in the appeal). The inadequacies were discovered too late to be rectified. The explanation for the failure to apply timeously for a date was that, on 15 August 1978, being one month E after the judgment, the Johannesburg attorney wrote to his Pretoria correspondents, asking them to make application for a date in terms of Rule 49 (6). The Johannesburg attorney was thereafter involved in personal litigation and in "many discussions" regarding the amalgamation of his practice. In the resulting pressures on him, he assumed that the Pretoria correspondents were attending to the matter and that they would F have referred any further requirements to him. It was only on 2 March 1979 that he wrote to them again, to enquire if a date had been allocated. He then learned that they had no record of his letter of 15 August 1978. The explanation for not handing in the record as prescribed by Rule 49 (8) G was that the Johannesburg attorney was not aware of the amendment to the Rule effected for the Transvaal by Government Notece R1313. Under the unamended Rule 49 (8) the record only had to be lodged 14 days prior to the hearing. The amendment requires it to be lodged simultaneously with the application for a date of hearing. The explanation for the late provision of security was that the Johannesburg attorney assumed that, since his Pretoria correspondents had attended to the lodging of the H record (which was already out of time), they had at the same time attended to the requirement of security or the waiver thereof. The omission was only discovered on 9 September 1980, in the course of a telephone call to the Pretoria attorneys.

The conclusion we cannot escape is that the appellants' Johannesburg attorney was remiss. In general, an attorney ought not to be allowed to rely on his ignorance of the Rules of Court when it is his duty to know what those Rules require. It may be a mitigating factor that counsel was consulted on the notice of appeal, but that cannot relieve

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the attorney of all responsibility. The position, at the least, remains one in which the litigant's counsel was at fault, and no explanation has been put forward for that apparent failure of duty. I see no difference A in principle between the neglect of the attorney and that of counsel in cases such as this. The attorney is also to be criticised for his failure to follow up his letter of 15 August 1978 until 2 March 1979. He was no doubt pre occupied with his own problems, but an attorney who finds B himself in that position is not justified in neglecting his client's interests. It is his duty to make suitable arrangements to protect his client while he is unable to attend to matters himself. The fact that he overlooked the amendment to Rule 49 (8) was, I suppose, a lapse which it is easier to forgive. Finally, on the question of security, it was again the Johannesburg attorney's duty to ensure compliance with the Rules, and, C in the absence of arrangements, he was not justified in assuming that his Pretoria correspondents had taken over that duty. In fairnes to the firm of attorneys whose name now appears on the record as the appellants' Johannesburg attorneys, it ought to be noted that no partners of that name are involved in these criticisms.

Mr Tselentis, for the respondent, relying on what was said by STEYN CJ in D Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H, argued that there was no explanation of the long delay in applying for condonation. However, there was an explanation, although it was only tendered in reply, and that was that the Johannesburg attorney, having prepared the application for condonation with reasonable despatch, E was led to believe, on reasonable grounds, that the application could properly be set down for hearing on the day set aside for the appeal itself.

Mr Tselentis submitted, correctly, that condonation will not be granted merely because the negligence in not complying with the Rules was that of F the attorney, as distinct from his client. In Saloojee's case supra STEYN CJ, after observing that the Court had on a number of occasions demonstrated its reluctance to penalise a litigant on account of the conduct of his attorney, went on to say, at 141B - E:

"I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of G the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity... The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant H should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are."

Moreover, as STEYN CJ added loc cit :

"A litigant... who knows... that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand the matter over to his attorney and then wash his hands of it. If... the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney... and expect to be exonerated of all blame... If he...