Molebatsi v Federated Timbers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Friedman JP, Hendler J
• Judgment Date: 23 November 1995
• Citation: 1996 (3) SA 92 (B)
• Docket Number: Civil Appeal 9/1995
• Hearing Date: 10 November 1995
• Counsel: H Barolsky for the appellant. J P Daffue for the respondent.
• Court: Bophuthatswana Supreme Court

Friedman JP:

A. The issues E

[1] The respondent instituted action against the appellant in the magistrate's court for the district of Molopo, claiming payment of the sum of R68 672,45 in respect of goods sold and delivered by the respondent to the appellant at the latter's special instance and F request, plus interest at the rate of 28% per annum on the said amount, from 25 April 1992, to date of payment, together with costs on the scale as between attorney and client.

[2] The respondent was represented by counsel in the court a quo, the appellant appeared in person.

G [3] After evidence was led and argument was heard, the magistrate granted judgment in favour of the respondent against the appellant in the amount of R68 672,45 plus interest at the rate of 28% per annum from 25 April 1992, together with costs on the attorney and client scale agreed to by the parties in terms of exh 'A'. The said judgment was granted on 30 March 1995.

H [4] A notice of appeal dated 3 April 1995 was served on the respondent, noting an appeal against the said judgment.

[5] The notice of appeal reads as follows, and I quote:

'Be pleased to take notice that appellant hereby appeals against the judgment of the above honourable court delivered on 30 March 1995 whereby the appellant's defence was dismissed with costs. I

The grounds upon which the appeal is based are as follows:

1.

The learned magistrate erred in not exercising his discretion in favour of the appellant.

2.

The learned magistrate should have found that the appellant was entitled to the defence claimed. J

Freidman JP

3.

A The appellant reserves the right to amend the reasons for appeal.

Dated at Mmabatho on this the 3rd April, 1995.'

[6] Thereafter on 30 October 1995 the appellant brought an application to amend the said notice of appeal, purely on notice. There was no explanatory affidavit or application for condonation.

[7] In addition to the aforegoing, there was an application on behalf of the appellant for B condonation for the late filing of the appellant's heads of argument.

[8] B. The argument on appeal

[9] Mr Daffue on behalf of the respondent submitted that the notice of appeal does C not comply with the Rules of Court, in that the said notice expresses the grounds of appeal too widely, and is vague and/or ambiguous.

[10] Mr Barolsky on behalf of the appellant conceded that the notice of appeal was defective, but contended that it could be amended and submitted that the said D application to amend the defective notice of appeal would cure the flawed notice of appeal.

[11] Mr Daffue submitted that inasmuch as the said notice of appeal was fatally defective it could not be amended. If the Court however permitted the notice of appeal to be amended he had no objection to the terms of the proposed amendment.

[12] The issue of the validity or otherwise of the notice of appeal, and whether it could E be amended, was dealt with in limine.

[13] C. The law

Rule 51(7) of the Rules of the Magistrates' Courts provides as follows:

F '(7) A notice of appeal or cross-appeal shall state -

(a)

whether the whole or part only of the judgment is appealed against, and if part only, then what part;

(b)

the grounds of appeal, specifying the findings of fact or rulings of law appealed against; and

(c)

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