DUTY OF LEGAL PRACTITIONERS IN APPEALS, CONDONATION APPLICATIONS, AND APPLICATIONS FOR REINSTATEMENT
Shikongo v Lee’s Investments (Pty) Ltd (SA 33-2020) [2022] NASC (15 November 2022) – application for condonation and reinstatement of appeal – principles restated.
The appellants appealed against the order of the High Court in which the first appellant was ordered to pay the respondent a certain amount with interest and costs, and in which the court a quo ordered the agreement between the parties dated 20 November 2012, as well as an addendum dated 31 March 2014, be canceled. On appeal, the appellants brought an application in which they sought the condonation for the late filing of the appeal record as well as for an order reinstating the appeal which was deemed to have been withdrawn in terms of the provisions of rule 9(4) of the Rules of the Supreme Court. The application was opposed.
The instructing counsel deposed an affidavit in support of the application and offered a long explanation for the late filing of the appeal record. The Supreme Court dealt with the appeal thus:
A litigant seeking condonation bears an onus to satisfy the court that there is sufficient cause to warrant the grant of condonation. The condonation application must be launched without delay as soon as a litigant becomes aware that there has been non-compliance with a rule or with rules.
The affidavit accompanying the condonation application must set out a ‘full, detailed and accurate’ explanation for the failure to comply with the rules. The court will also consider the litigant’s prospects of success on the merits, save in cases which demonstrate a ‘glaring and inexplicable disregard’ for the processes of the court.
The applicant failed to file the record of appeal within the time period prescribed by rule 8(2) of this court and failed to provide any explanation of what had happened for a period of about nine weeks after the notice of intention of appeal was filed. The applicant only started with the preparation of the appeal record after security for costs had been paid into court, which left the applicant with insufficient time to prepare and file the appeal record.
The applicant’s legal practitioner was familiar with the time within which to file the appeal record but failed in his duty as a legal practitioner to apply the rule correctly by miscalculating the last day on which the appeal record had to be filed. No explanation was provided for what prompted the miscalculation.
The legal practitioner of the appellant failed to apply for condonation soon after he had been informed of the appellant’s non-compliance with rule 8(2), by the registrar. The appellant also failed to apply for condonation for the failure to comply with the rule which requires a litigant to inform the registrar in writing that he or she had entered security for costs in spite of the fact that such non-compliance was brought to the attention of the appellant.
It was Held that:
The explanation proffered was inexplicable, unpersuasive, and amounted to a negligent and unreasonable non-observance of the Rules of this Court.
In respect of the prospects of success on the merits, it was found that there were no prospects of success on appeal in respect of the merits.
As a result, the application for condonation and reinstatement of the appeal was refused and the matter was struck from the roll with costs.
Alutumani v Walvis Bay Stevedoring Co (Pty) Ltd (LCA 46-2014) [2022] NALCMD 74 (5 December 2022)– condonation for late filing of applications for leave to appeal.
Following retrenchment, the applicants referred a dispute to the Labour Commissioner’s office for adjudication. The arbitrator found in the applicants’ favour and the first respondent appealed against that decision and award to the Labour Court. On 13 May 2016, the Labour Court upheld a preliminary point in favour of the first respondent. The applicants applied for and were granted leave to appeal to the Supreme Court against that outcome.
On 4 July 2019, the Supreme Court upheld the appeal and referred the matter back to the Labour Court for the determination of the merits of the appeal, which the Labour Court did in a judgment delivered on 18 May 2020. The applicants noted an appeal as of right to the Supreme Court against the Labour Court’s decision and belatedly established that the procedure was wrong, and that leave to appeal was required. This resulted in an application for condonation for the late filing of an application for leave to appeal, and an application for leave to appeal, some two years after the Labour Court decision.
The 64 applicants explained that due to an ‘oversight’, they did not seek leave before launching an appeal to the Supreme Court, instead, an appeal was noted as of right. However, the oversight was not explained meaningfully. It would appear from instructed counsel for the applicants, that it was only discovered through the heads of argument of the respondent, delivered after the applicants delivered their heads of argument in the Supreme Court for purposes of the appeal in the Supreme Court, that the wrong procedure was followed, and that leave to appeal should have been applied for.
The applicants further explained that the ‘oversight’ was not deliberate but ‘due to a confusion’ because of the number of times that the applicants appeared before the same court. What caused further confusion was that the application for leave to appeal had been argued before the same judge, and after the judgment was delivered, the applicants’ instructing legal practitioner withdrew to relocate to South Africa. Accordingly, another practitioner had to be appointed, and any omission or mistake should not be attributed to the applicants, but to the legal practitioners that represent[ed] the applicants. The Court considered the matter and held that:
The explanation for the late filing of the application for leave to appeal was vague, unsubstantiated, and unpersuasive.
There is a degree beyond which a litigant cannot be excused by his or her legal practitioner’s conduct. Finality to proceedings was also an important consideration. Not even the record of proceedings sought to be appealed against was placed before the court. Condonation was refused in the circumstances.
The court stated, of relevance, that:
‘[15] Most recently, and in Solsquare Energy (Pty) Ltd v Hans Ivo Luhl (SA 25/2019delivered on 25 August 2022), the Supreme Court reiterated the now trite principle that applications for condonation for non-compliance with the rules must be lodged without delay, and the explanation for the non-compliance must be full, detailed and accurate in order to enable the court to understand clearly the reasons for it. The range of factors relevant to determining whether an application for condonation should be granted includes the extent of the non-compliance with the rule in question, the reasonableness of the explanation offered for the non-compliance, the bona fides of the application, the prospects of success on the merits of the case, the importance of the case, the respondent’s (and where applicable, the public’s) interest in the finality of the judgment, the prejudice suffered by the other litigants as a result of the non-compliance, the convenience of the court and the avoidance of unnecessary delay in the administration of justice (emphasis supplied).
As a result, the application for condonation was dismissed. No cost order was made.
In respect of applications for leave to appeal and the consequences of late filing:
The court stated the following in respect of the duties of Legal Practitioners:
‘[17] The failure, without any proper explanation (other than confusion because of the number of appearances that the applicants had to attend, and oversight), of the applicants’ instructed counsel to timeously engage in the proper research and drafting of documents to commence with the appeal against the order and Judgment on the merits of Unengu AJ is not lost on the court. It borders, in the absence of the required detailed explanation, on culpable inactivity. The Supreme Court has expressed itself a number of times on the duties of a legal practitioner in these circumstances(Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2013 (4) NR 1029 (SC) paras 6-8):
A legal practitioner instructed to note an appeal is duty-bound to acquaint him or herself with the Rules of the Court in which the appeal is to be prosecuted.
Inasmuch as an applicant for condonation is seeking an indulgence from the Court, he or she is required to give a full and satisfactory explanation for whatever delays have occurred.
Where the non-observance of the Rules has been flagrant and gross, the application should not be granted, whatever the prospects of success might be. Of course, the consideration must apply to the circumstances of the case, based on the explanations provided under oath.
[18] In Aymac CC and Another v Widgerow 2009 (6) SA 433 (W),the following was stated:
‘[36] . . . An attorney is not expected to know all the rules, but a diligent attorney will ensure that he researches, or causes to be researched (by counsel if necessary), the rules which are relevant to the procedure he is about to tackle. And if he discovers at some stage that he has been mistaken or remiss, then it is doubly necessary that he study the rules carefully in order to ensure that further mistakes are not made and that those that have been made are rectified. This is the least one expects of a diligent attorney.’
The court referred to the concept of ‘culpable inactivity or ignorance’ thus:
‘[39] Culpable inactivity or ignorance of the rules by the attorney has in a number of cases been held to be an insufficient ground for the grant of condonation... The principle established by these cases is that the cumulative effect of factors relating to breaches of the rules by the attorney may be such as to render the application for condonation unworthy of consideration, regardless of the merits of the appeal.
[40] ... Inactivity by one party affects the interest of the other party in the finality of the matter. See in this regard Federated Employers Fire & General Insurance Co Ltdand Another v McKenzie 1969 (3) SA 360 (A) at 363A in which Holmes JA said the following concerning the late filing of a notice of appeal:
“The late filing of a notice of appeal particularly affects the respondent’s interest in the finality of his judgment — the time for noting an appeal having elapsed, he is prima facie entitled to adjust his affairs on the footing that his judgment is safe;
[19] As stated earlier, the applicants launched their labour dispute as a result of events that occurred in 2013, some 9 years ago. It is apparent that the application for leave to appeal was required to have been made within 15 days after the date of the order and judgment made by Unengu AJ in 2020, and not some two years later. At some point, this matter, instituted in 2013 must reach finality, and the prejudice to the respondent in these circumstances should not be overlooked either.
[20] The applicants were represented by the same instructed counsel from the outset, and the failure to meaningfully consider the legal principles relating to the procedure for an appeal, when this process is being undertaken is simply an insufficient ground for the grant of condonation in these circumstances, especially because the length of time that has elapsed. These actions are not indicative of a diligent approach to the matter by counsel. It must also be mentioned that the judgment of the Supreme Court referring the initial decision of Unengu AJ back for reconsideration was granted subsequent to an application for leave to appeal.’
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