Late filing of an appeal of more than five years

Agricultural Bank of Namibia Limited v Goliath (SA 38-2023) [2023] NASC (21 June 2023) 

- Opposition: frivolous and vexatious; lack of prospects of success

- Right to execute judgment and interdictory remedy to suspend execution  

The applicant (Agribank) as plaintiff obtained a judgment against the respondent as defendant on 7 February 2018 declaring the respondent’s farm executable. This order had been given in respect of proceedings under rule 108 of the rules of the High Court and had followed an order made in October 2015 where a settlement agreement had been made an order of the court. The respondent/defendant was represented in both the proceedings which culminated in the settlement agreement made an order of court on 28 October 2015 and in the rule 108 proceedings on 7 February 2018.

The applicant proceeded to take steps to execute the order in its favour by issuing a notice of sale in execution of the farm with a sale scheduled for 24 April 2023. On 20 April 2023, the respondent filed a notice of appeal and an application for condonation for the late filing of that notice, the appeal record, and security for costs – more than five years after the impugned order had been granted and where the respondent was represented.

The application was brought by the applicant under section 14(7) of the Supreme Court Act 15 of 1990, read with rule 6 of the rules of the Supreme Court for the summary dismissal of the respondent’s appeal on the grounds that it is frivolous and vexatious or has no prospects of success, with costs of the said application. The applicant asserted that the grounds of appeal raised in the notice were devoid of merit and that the notice itself did not comply with rule 7 of the rules of the Supreme Court and that the appeal was frivolous, vexatious, and did not have any prospects of success.

The applicant served its notice of motion and founding affidavit on 23 May 2023 upon the respondent. Despite being called upon to file an answering affidavit under rule 6(3) within ten days of that service, no answering affidavit was filed by the respondent. 

SMUTS JA was designated to determine the application, which he did as follows:

‘[5] Having been designated to determine the application under s 14(7) of the Act, I do so under rule 6(4)(a) in chambers on the notice of motion and founding affidavit and annexures seeing that the respondent has not seen fit to oppose this application and file an affidavit under rule 6(3) within the time period of ten days which has expired and has also not done so to date.

[10] The difficulty facing this application is that the notice of appeal was filed late – in this case more than five years late. Although the notice of appeal is accompanied by a condonation application for this failure to comply with rule 7, the failure to timeously note the appeal means that there is no appeal before this Court to be dismissed, unless and until condonation is granted and the appeal is reinstated (which was not even sought by the respondent in her condonation application).

[11] The failure to lodge a record within the required period and to find security also resulted in the lapsing of the appeal. There is thus no appeal pending before this Court which can be dismissed under s 14(7) read with rule 6, as has been emphatically confirmed by this Court in Ondjava Construction CC & others v HAW Retailers t/a Ark Trading 2010 (1) NR 286 (SC) para 5. 

[12] If a notice of appeal has not been timeously filed or the appeal had lapsed by reasons of the failure to comply with the rules of this Court as provided by such rule, the respondent in that appeal, as is the case in this matter, is at liberty to execute the judgment or order obtained in its favour. The late filing of a notice of appeal even if accompanied by a condonation application cannot suspend execution. A party in those circumstances seeking to appeal would not be remediless and would be at liberty to seek an interim interdict to suspend execution pending the hearing of an application for condonation for the late filing of the notice of appeal but would be saddled with the onus of establishing prospects of success both on appeal and in respect of the condonation application in order to succeed with such an interlocutory interdict. In the absence of an order embodying such an interdict, execution can proceed.

[13] Given the frequency with which parties file late notices of appeal on the eve of execution in a bid to delay execution, the registrar is directed to provide a copy of this judgment to the Director of the Law Society for the attention of its members who practice as instructing legal practitioners and to deputy sheriffs charged with the execution of judgments and orders.

It was, therefore, held that:

If a notice of appeal has not been timeously filed or the appeal lapses by reasons of the failure to comply with the rules of this Court as provided by such rule, the respondent in that appeal, as is the case in this matter, is at liberty to execute the judgment or order obtained in its favour. 

The late filing of a notice of appeal even if accompanied by a condonation application cannot suspend execution. A party in those circumstances seeking to appeal would not be remediless and would be at liberty to seek an interim interdict to suspend execution pending the hearing of an application for condonation for the late filing of the notice of appeal but would be saddled with the onus of establishing prospects of success both on appeal and in respect of the condonation application.

As a result, the applicant’s application brought under section 14(7) of the Supreme Court Act 15 of 1990 read with rule 6 was dismissed by reason of the fact that s 14(7) was not applicable because there was no appeal before the court by reason of the late filing of the notice of appeal. As there was no appeal before the Court, there was no suspension of any judgment or order sought to be appealed against. There was no order as to costs made. 

Ondjava Construction CC & others v HAW Retailers t/a Ark Trading 2010 (1) NR 286 (SC) – Obligations to furnish security and file copies of the record of appeal – Consequences of failure to comply 

The Supreme Court stated the following:

‘[1] Subject to the provisions of s 18(5) of the High Court Act, 1990 and rule 4(12) of the Supreme Court Rules, rule 8 of the Supreme Court Rules (the “Rules”) defines the circumstances under which and the time within which an appellant must find and furnish security for the respondent’s costs of appeal: Sub-rule (2) provides that, if the execution of a judgment is suspended pending an appeal to this Court, the appellant shall, before lodging with the registrar copies of the record, enter into good and sufficient security for the respondent’s costs of appeal unless the respondent waives the right to security or the court appealed from, on good cause is shown, releases the appellant wholly or partially from that obligation. Sub-rule (3) obliges an appellant to inform the registrar in writing at the time when copies of the record of appeal are lodged whether (s)he has entered into security or has been released from that obligation either by virtue of a waiver or by the court appealed from.

[2] In addition, the sub-rule also contains a deeming provision which seeks to inform litigants about the consequences of non-compliance with its provisions: should an appellant fail to so inform the registrar, it would be deemed a failure to lodge the record of appeal in compliance with the requirements of rule 5(5). As noted in numerous judgments dealing with provisions in other jurisdictions worded similarly to rule 5(5), although they may not specifically so state, their language implies that an appeal lapses upon non-compliance with their provisions (Vivier v Winter; Bowkett v Winter, 1942 AD 25 at 26; Bezuidenhout v Dippenaar, 1943 AD 190 at 192; United Plant Hire (Pty) Ltd v Hills and Others, 1976 (2) SA 697 (D) at 699H and Moraliswani v Mamili, 1989 (4) SA 1 (A) at 8B – D). 

This, in essence, is also the construction given by this Court to the sub-rule (Channel Life Namibia (Pty) Ltd v Gudrun Otto, unreported judgment of this Court in Case No. SA22/2007 dated 15/08/2008, par [39]). The effects thereof are that the appeal is deemed to be discontinued and that it may only be revived upon the appellant applying for – and the Court granting – condonation for the non-compliance and reinstatement of the appeal (See also Moraliswani v Mamili, supra, at 8B-D; Waikiwi Shipping Co Ltd v Thomas E Barlow & Sons (Natal) Ltd, 1981 (1) SA 1040 (A) at 1049B - C and S v Adonis, 1982 (4) SA 901 (A) at 907F – G); that the judgment of the High Court, suspended both under the provisions of the Rules, and at common law (Hollis v Chase, 8 S.C. 3 at 5; Reid v Godart, 1938 AD 511 at 513 and South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd, 1977 (3) SA 534 (A) at 542E, 544G - H and 545A), by the appeal may be carried into execution unless otherwise ordered upon a substantive application and, if so minded, a respondent who has given notice of a cross-appeal, must notify the registrar of his or her intention to prosecute it and thereupon assume the duties of an appellant in the proceedings, to mention a few.

The litigants on both sides, I regret to note, have not shown any regard for the consequences which attach to their disregard of the rules relating to appeals. Having failed to find security and to notify the registrar accordingly when the appellants lodged the record of appeal and having omitted to deliver copies of the record of appeal to the respondent in breach of rules 8(3) and 5(5), the appeal lapsed. Therefore, the respondent was at liberty to execute the default judgment he had obtained against them. He had no need to bring an application for an order that the appeal be dismissed with costs. As it is, in the absence of an application – and ultimately, the granting of an order - for condonation and reinstatement of the appeal, there was no longer an appeal which could be dismissed as prayed for by the respondent - just as there was no longer an appeal pending which the appellants could set down for hearing.

Once the appellants realised that they were in breach of the Rules and were unable to obtain the respondent’s consent to an extension of the periods within which to comply with them,10 they should have brought an application for condonation and reinstatement without delay11 and requested that the application (not the appeal) be set down for hearing in due course. Upon hearing and granting the application for condonation and reinstatement of the appeal, the Court would have been at liberty to consider their argument on the prospects of success in the appeal (advanced in support of the application for condonation) as argument on the merits of the appeal and decide the appeal accordingly. 

There was no way in which the petition for condonation could be heard simultaneously with the appeal itself. 

As a result, both the appeal and cross-appeal lapsed, and as a matter of formality, they fell to be “posthumously” struck off the roll, with costs. 

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