Rennie v Kamby Farms (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Hoexter JA, Grosskopf JA, M T Steyn JA
• Judgment Date: 01 December 1988
• Citation: 1989 (2) SA 124 (A)
• Hearing Date: 04 November 1988
• Court: Appellate Division

Hoexter JA:

The late Peter John Rennie was the owner of the farm 'Penavon' in the district of Richmond, Natal. Although 'Penavon' itself consists mainly of land and grazing, it is bounded by forests owned by large forestry estates. To the north of 'Penavon' is a property known as J 'Kamby Farms', of which the owner is a private company ('the defendant'). On 10 August 1981 a large part of 'Penavon' was devastated

Hoexter JA

A by fast-moving forest fire, and the plaintiff suffered considerable losses. In August 1982 the plaintiff instituted an action for damages against the defendant in the Natal Provincial Division. The defendant resisted the action, and the trial came before Nienaber J. The plaintiff's loss was agreed at R22 000. The broad issue in the case was thus described by the trial Judge in his judgment: B

'The plaintiff blames an employee of the defendant for ordering a 'back-burn' to be drawn along their common boundary to his north which, he says, accounted for the damage to his property. The defendant admits responsibility for starting a counter-fire but denies that the 'back-burn' was the true cause of the damage to the plaintiff's property. The ''back-burn'' was put in to meet the very C real threat of a huge fire advancing from the north. The damage to the plaintiff's farm, so the defendant maintains, was caused by sparks and incandescent material wafted aloft by the updraught of the approaching fire, and carried forward by the strong wind that was blowing at the time, thereby setting the plaintiff's farm alight. The defendant furthermore claims that the 'back-burn' was put in as a matter of urgent necessity and it denies that there was any negligence on the D part of any of its employees in doing so.'

Having heard the evidence at the trial (in the course of which he undertook an inspection in loco ) and argument, the trial Judge on 7 August 1984 gave judgment for the defendant with costs, including the E costs of two counsel. With leave of the Court below (which was granted on 16 October 1984) the plaintiff noted an appeal to this Court against the whole of the judgment of Nienaber J.

In terms of Rule 5(4)(b) of the Rules of this Court the necessary copies of the record of the proceedings in the trial Court should have been lodged with the Registrar of this Court within three months of 16 October 1984. An incomplete record of the proceedings was lodged on F 21 November 1986; and on the same date a petition by the plaintiff for condonation of the late lodging of the record was also filed. The plaintiff died on 18 March 1987. The application for condonation was heard on 4 November 1988 when this Court granted an order substituting the executor in the plaintiff's estate as the petitioner in G the application and the appellant in the appeal.

I proceed to consider the application for condonation. On 11 December 1984 the plaintiff's Pietermaritzburg attorneys ('MBLW') applied to the defendant's Pietermaritzburg attorneys ('GLDL') for an extension of the prescribed period of time within which the record had to be lodged H with the Registrar of this Court. On 13 December 1984 GLDL informed MBLW by letter that

'... we are prepared to allow you a reasonable extension of time within which to obtain the record from Lubbe Recordings...'.

The evidence at the trial was recorded by means of a tape-recording machine. A firm known as Sneller Recordings ('SR') was responsible I for the transcription thereof. After the trial but before SR had begun the transcription a number of the tapes concerned were stolen from the office of the Registrar of the Provincial Division in Pietermaritzburg. MBLW received an incomplete transcription of the record from SR in April 1985. Accordingly it became necessary to fill in the gaps in the transcribed record by a process of reconstruction from such materials J as were

Hoexter JA

A available. In the record before us the evidence at the trial appears at pp 2 - 236. Counsel informed us that what appears at pp 82 - 92, and again at pp 168 - 79 represents the reconstructed portion of the record.

On 13 September 1985 GLDL wrote a letter to MBLW in which, inter alia, the following was said:

'Your client has now had some six months within which to B reconstruct the missing portions of the record. Kindly by return advise -

(a)

what steps you have taken to reconstruct the missing portions of the record;

(b)

how far you have progressed therewith. We have available copious notes of the evidence at the trial as taken by our junior counsel, together with the notes taken by attorney Sean C Mullins. These are available to you if you require same.

...

We are furthermore not prepared to allow this matter to drag on indefinitely... and we must therefore request you to attend to this matter urgently and without delay. You have already had six months and unless the record is reconstructed by you not later than 15 October 1985 for submission to the trial Judge, application will be made for leave to execute on the judgment in favour of our client. D

You may collect the notes referred to hereabove from our offices....'

In a letter dated 20 September 1985 MBLW acknowledged receipt of the above letter and intimated that:

'We will immediately arrange to collect the notes from your office and will commence reconstructing the record.' E

According to an affidavit by the plaintiff's Pietermaritzburg attorney filed in support of the petition for condonation the notes kept by defendant's junior counsel (Mr Broster ) were...