Matanzima and Another v Van Jaarsveld NO and Another

• Jurisdiction: South Africa
• Judge: Goldin JA, James JA and Dumbutshena JA
• Judgment Date: 08 February 1991
• Citation: 1991 (4) SA 304 (TKA)
• Hearing Date: 08 February 1991
• Court: Transkei Appellate Division

Goldin JA:

A This is an appeal against an order to rectify a condition in a deed of grant of land donated to second appellant by the President of Transkei and which land is now being sold by first respondent in his capacity as liquidator of the insolvent estate of second appellant.

At the hearing appellants applied for condonation of the failure to B lodge notice of appeal within 21 days but in fact only doing so after a period of about five months. The explanation for their failure to file their notice of appeal timeously is contained in the first appellant's affidavit. He avers that within a few days after judgment was given in the Court a quo he instructed his attorneys to lodge notice of appeal. He says that he

'requested Advocate Renene to lodge an appeal (and while he was) not C acquainted with the time limits set by the Rules of Court (he) can state positively that (his) instructions to lodge an appeal was conveyed to counsel within the time limit of 21 days which he has now been advised by counsel'.

He declares and emphasises that it was always his intention to appeal and he believed that this had been done. When the property which is the D subject-matter of this appeal was advertised for sale by public auction by the liquidator of second appellant's estate, he was surprised to hear that no notice of appeal had been drafted or lodged. He made enquiries and ascertained 'that there had been a misunderstanding between counsel and attorneys'. Second appellant was serving a term of imprisonment at the time and relied upon first appellant to appeal in this matter. The E principles applicable to an application for condonation have been fully considered and restated in the case of H B Farming Estate (Pty) Ltd and Another v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T) at 133-5. I do not consider it justified to penalise the appellants on account of the conduct of their legal advisers. See Saloojee and Another F NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138.

Notwithstanding the long delay there is nothing to show that appellants themselves had or should have become aware of the omissions on their attorneys' or even counsel's part. Appellants had no reason to suspect that notice of appeal had not been lodged and second appellant G only became aware of it when the sale of the property was about to take place. Margo J says in the H B Farming Estate case supra at 134B-C:

'The basic principle is that the Court has a discretion to be exercised judicially upon consideration of all the facts. In essence it is a matter of fairness to both sides. Among the relevant facts are the extent of the non-compliance, the explanation therefor, the prospect of H success, the importance of the case, the respondent's interest in finality, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice. Ordinarily these facts are interrelated and are not individually decisive.'

In this case I have mentioned that there is no reason to doubt that appellants intended to appeal and gave instructions within days for an appeal to be lodged and believed that it had been done. Notwithstanding I my judgment which follows, it can be said that it involves an important principle and is certainly arguable so that prospects of success could be understandably entertained.

I have also considered Mr Locke's opposition to the...