Symes NO and others v Harry’s Tyre (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Reid J |
| Judgment Date | 15 September 2023 |
| Citation | 2023 JDR 3602 (NWM) |
| Hearing Date | 28 July 2023 |
| Docket Number | 2801/2019 |
| Court | North West Division, Mahikeng |
Reid J:
Introduction:
This application deals with the lapsing of an application for the date of an appeal as opposed to the lapsing of the appeal itself.
The applicants essentially seek the following relief:
A declaration order that the respondent’s application for a date for the hearing of its appeal, dated 15 August 2022, is declared to have lapsed pursuant to Uniform Rule 49(7)(d) of the Uniform Rules of Court; and
By reason of the lapsing of the respondent’s application
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for a date for the hearing of its appeal as ordered in prayer 1 above, it be confirmed and declared that the respondent’s appeal to the full court of this Division has lapsed in terms of Uniform Rule 49(6)(a).
The applicants seek the above relief after setting the matter down on the opposed motion roll to be heard by a single judge. It was consequently heard by this court.
The crisp issue for this court to decide is whether the ex lege lapsing of the appeal in terms of Uniform Rule 49(6)(a) results therein that the appeal itself has lapsed in terms of Uniform Rule 49(7)(d). The applicant phrases the issue before court in its heads of argument as follows:
The only application serving before this court for hearing is that of the applicants. The respondent’s condonation/reinstatement application of the lapsed appeal will be heard by the appeal court in due course.”
Further in the heads of argument it is argued on behalf of the applicant that:
. . . The condonation / reinstatement application is not
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a barrier to this court pronouncing on whether the respondent’s appeal, as a matter of law, has lapsed, while the appeal court can deal with condonation / reinstatement application in due course.
The applicant’s application herein does not require the prospects of success of the appeal to be traversed. The respondent’s condonation / reinstatement application will be heard by the appeal court in due course, and the prospects of success will then be a factor to consider.”
My understanding of the applicants’ case is that a declaratory order is sought to the effect that the appeal has lapsed, whilst acknowledging that the full court which will hear the appeal, will decide whether to condone the non-compliances of the Uniform Rules before determination of the appeal.
Parties
The respondent was the defendant in the Court a quo and it appeals against the whole judgment as handed down on 16 September 2021 by Djaje J (as she then was). In this judgment an order was made that the disposition that was made in terms of section 29(1) of the Insolvency Act 24 of 1936 to the amount of R1,074,169.14 in favour of the
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defendant was set aside, together with costs to be paid by the defendant.
Leave to appeal was refused by the court a quo. The matter is before this court after a successful petition, in which the matter is referred back to be heard by a full court of this Division.
To prevent confusion, I will refer to the applicants, who is the appellants in the appeal and who were the plaintiffs in the court a quo, as “the appellants” or “the applicants” interchangeably as the context requires. The liquidators act in their official capacity as joint liquidators of the company Over-All Road Express (Pty) Ltd, which is in liquidation.
The respondent is Harry’s Tyres (Pty) Ltd who was the plaintiff in the court a quo and will be referred to as “the respondent”.
Material factual background
The notice of appeal had been filed on 24 June 2022 and in terms of Rule 49(6)(a) the respondent had to make written
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application with the registrar for a date of the appeal within 60 days from 24 June 2022.
The respondent timeously and on 15 August 2022 filed such application with the Registrar of this Court.
The respondent failed to file a power of attorney together with the application for the date for hearing as required by Uniform Rule 7(2) and without which the Registrar shall not set down the matter on appeal.
On 15 August 2022 the respondent was unable to file the completed appeal record together with the application for a date for hearing, as required by Uniform Rule 49(7)(a). The respondent filed an affidavit in terms of Rule 49(7)(a)(ii) on 15 August 2022 and the Registrar accepted the application.
In terms of Rule 49(7) (d) the respondent had to file the complete appeal record within 40 days of the application for a date for hearing, which is before 10 October 2022.
The respondent failed to file the appeal record by 10 October 2022
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and the applicant therefore on 22 November 2022 lodged an application in terms of Rule 49(7)(d) that the application for the date of the hearing had lapsed. This is the application currently before court.
On 9 January 2023 the respondent filed a letter of authority with an affidavit seeking condonation for the failure to file the power of attorney and the appeal record timeously. The respondent, to this end, filed a supplementary affidavit.
The record of appeal was filed on 21 June 2023.
The parties are ad idem that the notice of the appeal has lapsed ex lege in terms of Rule 49(6)(a).
The respondent, who is the appellant in the appeal, has filed two (2) applications for condonation, namely:
for the late filing of the power of attorney as required by Rule 7(2) with an application that the appeal be reinstated in terms of Rule 49(6)(b); and
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the appellant has filed an application for condonation to reinstate the appeal in terms of Rule 49(7)(a)(ii).
Legislative framework
The following Uniform Rules are applicable. Uniform Rule 7 deals with the filing of a Power of Attorney together with the application for a date of the hearing in an appeal.
Power of attorney
. . .
The registrar shall not set down any appeal at the instance of an attorney unless such attorney has filed with the registrar a power of attorney authorising him to appeal and such power of attorney shall be filed together with the application for a date of hearing.”
Uniform Rule 49 is also applicable and reads as follows:
Civil Appeals from the High Court
(a)
Within sixty days after delivery of a notice of appeal, an appellant shall make written application to the registrar of the division where the appeal is to be heard for a date for the hearing of such appeal and shall at the same time furnish him with his full residential address and the name and address of every other party to the...
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