Nawa and Others v Marakala and Another

• Jurisdiction: South Africa
• Judge: Landman J
• Judgment Date: 13 December 2007
• Citation: 2008 (5) SA 275 (BH)
• Docket Number: 26/06
• Hearing Date: 29 November 2007
• Counsel: Advocate Ledwaba for the applicants. No appearance for the respondents
• Court: Bophuthatswana High Court

Landman J: B

[1] The applicants pray for an order:

(a)

Directing that an appeal lodged by the [first and second] respondents on 29 July 2005 at the Magistrates' Court for the district of C Moretele held at Temba under case No 03/2004 has lapsed, alternatively, dismissing an appeal lodged by the respondents on 29 July 2005 at the Magistrates' Court for the district of Moretele held at Temba under case No 03/2004; and

(b)

that any of the respondents who oppose this application be ordered to pay the costs of this application.

D The first and second respondents have filed their notice to oppose the application as well as an answering affidavit. The applicants have filed replying affidavits to the answering affidavits.

[2] The magistrate dismissed with costs an action by the first and second E respondents on 1 July 2005 and provided reasons for judgment on 11 July 2005. The first and second respondents noted an appeal on 29 July 2005. It is alleged that the respondents have failed to comply with the provisions of rule 50(1) of the Uniform Rules of Court in that they have failed to prosecute an appeal within 60 days of noting it.

F [3] There was no appearance for the respondents. The new attorney of record for the first and second respondents sent a letter to the applicants suggesting they take an order by default. Mr Ledwaba, who appeared for the applicants, submitted:

(a)

That insofar as the first and second respondents have not filed their G notice of appeal with the registrar of this court, the appeal has not been properly noted and the court should make a declaration that there is no appeal pending.

(b)

That rules 50(1) and 50(4)(a) of the Uniform Rules of Court have been flouted by failing to prosecute the appeal within 60 days of the H noting of the appeal and failing to apply to the registrar for the date of hearing within 40 days of noting it.

(c)

The first and second respondents further failed to file with the registrar two copies of the record of the lower court proceedings as required by the provisions of rule 50(7). This must be complied with before the registrar can allocate the date of hearing an appeal.

I [4] I need only deal with the prayer for a declaration that the appeal noted by the first and second respondents has lapsed.

[5] Previously it was held that a court, even a court of appeal, did not have the power to declare that an appeal had lapsed. See In re Goodman J 1957 (2) SA 111 (T). This was a highly undesirable state of affairs.

Landman J

Bresler J (Boshoff J concurring) explained why at 112G - H. He said: A

There does not appear to be authority which would in these circumstances justify the dismissal asked for. No case was in any event cited. This is most...