Mbutuma v Xhosa Development Corporation Ltd

• Jurisdiction: South Africa
• Judge: Wessels JA, Trollip JA, Corbett JA, Miller JA and Trengove AJA
• Judgment Date: 30 November 1977
• Citation: 1978 (1) SA 681 (A)
• Hearing Date: 17 November 1977
• Court: Appellate Division

Trengove, A.J.A.:

This is a petition for the condonation of the applicant's failure to note and prosecute an appeal timeously, and for an extension of the time within which to do so. The respondent opposes the grant of the relief claimed. The applicant wishes to appeal against a B final order of sequestration which was granted against his estate, at the instance of the respondent, by MUNNIK, C.J., in the Transkeian High Court, on 6 December 1974. In anticipation of the possibility of condonation being granted, the appeal record was filed and heads of argument on the merits of the appeal were lodged. The petition for condonation was signed C and attested by the applicant on 10 November 1976 and it was lodged with the Registrar of this Court on 22 November 1976, i.e., some 23 months after the date on which the final order was granted by the Court a quo. The main issue in these proceedings is whether this Court should grant the indulgence sought, notwithstanding the inordinate delay in approaching the Court for condonation. The Court has a very wide discretion in these D matters. Condonation may be granted under Rule 13 of the Rules of this Court if the applicant has satisfied the Court that sufficient cause has been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause has been shown, the Court will consider all the relevant facts and circumstances of the particular case, E such as the degree of non-compliance with the Rules, for example the length of the delay, the explanation therefor, the importance of the case, the prospects of success, the respondent's interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice; see, for example, S. v Yusuf, 1968 (2) SA 52 (AD), and F Kgobane and Another v Minister of Justice and Another, 1969 (3) SA 365 (AD) at p. 369D - H. However, in each case the question is whether sufficient cause has been shown for the relief sought and, as was said by INNES, J.A., in Cairn's Executors v Gaarn, 1912 AD 181 at p. 186:

"But on the other hand the length of the delay and its cause must always be important (in many cases the most important) elements to be considered in arriving at a conclusion. It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify G the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made very extensive, and which it is highly desirable not to abridge. All that can be said is that the applicant must show, in the words of COTTON, L.J. (In re Manchester Economic Society, 24 Ch. D. at p. 498), 'something which entitles him to ask for the indulgence of the Court'. What that something is must be decided upon the circumstances of each particular application."

H Now, what are the facts of the present case? These facts, which are set out in the petition and the supporting affidavit filed by the applicant's Umtata attorney - to whom I shall, for convenience, simply refer as "the attorney" - may be summed up as follows:

(a) Immediately after the final sequestration order had been granted on 6 December 1974, the applicant instructed his attorney to note an appeal against the order. On 13 December 1974, the attorney lodged a "Notice of intention to appeal" with the Registrar of the Court a quo and served copy of the notice on the respondent's attorney. He failed, however, to

Trengove AJA

lodge the notice with the Registrar of this Court within the time prescribed by Rule 5 (1), or at all. The attorney, furthermore, was under the impression that the notice was defective in that it did not state, as required by Rule 5 (2), whether the whole or part only of the order was A appealed against.

(b) The attorney appears to have been under the impression at the time that the notice also had to incorporate the grounds of appeal. He therefore obtained a copy of the judgment of the Court a quo and prepared "Grounds of appeal" which were lodged with the Registrar of the Court a B quo on 17 February 1975. According to his affidavit, the attorney was at this stage already aware that the appeal had not been noted within the prescribed time and that "it would now be necessary to apply for condonation".

(c) The Registrar of the Court a quo forwarded the grounds of appeal to the Registrar of this Court early in May 1975...