SUMMARY
A 194/2005

HEINER
SCHWEIGER versus GAMIKAUB (PTY) LTD

MULLER,
AJ

11/11/2005

CIVIL
PROCEDURE - LEAVE TO APPEAL

• Application
  for condonation for late filing of application for leave to appeal
  and for leave to appeal

  
  

• Leave
  to appeal still required in respect of cost order.

  
  

• Requirements
  for condonation, namely, acceptable explanation and prospect of
  success.

  
  

• Failure
  of providing acceptable explanation, not necessary to consider
  second requirement.

  
  

• Obligation
  of legal representative to know and apply the Rules of Court.

  
  

• Condonation
  refused and application for leave to appeal dismissed.

  
  

CASE
NO. A 194/2005

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

And

CORAM: MULLER
A J

HEARD
ON: 2005.11.02

DELIVERED
ON: 2005.11.11

______________________________________________________________________

JUDGMENT

MULLER, AJ:

[1] This is an application for
leave to appeal brought by a legal practitioner, Mr Andreas Vaatz, in
the matter between the Applicant/Defendant and Respondent/Plaintiff.
I shall refer to the former hereinafter as “Schweiger” and the
latter as “Gamikaub”.

[2] Mr Vaatz was represented by
Adv. T J Frank SC in this Court who submitted the heads of argument
on behalf of Mr Vaatz.

[3] The background of the
matter is that Schweiger brought an application on an urgent basis to
set aside a default judgment granted by the assistant Registrar of
this Court and other relief. That application was opposed and
answering and replying affidavits were filed. On 21 July 2005, after
hearing arguments, Shikongo AJ granted the order prayed for by
Schweiger and awarded costs on an attorney and own client scale de
bonis propriis.

[4] Against this cost order,
which is in effect an order against Mr Vaatz, the legal
practitioner of Gamikaub, applied for leave to appeal against that
cost order to the Supreme Court of Namibia. As far as I am aware,
there is no application against the order made by Shikongo AJ on 21
July 2005 in respect of the merits by Gamikaub, the party who lost,
so to speak.

[5] Schweiger who was
successful on the merits in the said application did not oppose the
application for leave to appeal by Mr Vaatz and there was no
attendance on his behalf in this Court.

[6] At the outset I asked Mr
Frank what the position is of the attorney, Mr Vaatz, applying for
leave to appeal, while he was not a party to the said application.
Mr Frank indicated that because the costs order is effectively one
against the attorney, Mr Vaatz, he has an interest in this matter and
consequently locus standi to apply in that capacity for leave
to appeal. I was also referred to the heading of the application for
leave to appeal which indicated Mr Vaatz as the Appellant. In the
light of the decision that I have arrived at, it is not necessary
pursue this aspect any further.

[7] I do not intend to repeat
and discuss the arguments submitted by Mr Frank in this Court, save
to make the observation that his arguments are based on the
consideration of a possible prospect of success on the appeal. I
shall refer to this in more detail later herein.

[8] In this Court, Mr Vaatz
applied for condonation for the late filing of the application for
leave to appeal and to extend the normal period of 15 days in terms
of Rule 49 of the Rules of Court to 80 days or such period as the
Court may determine to facilitate the hearing of the application
within that period, as well as for leave to appeal against the cost
order made by Shikongo AJ on 21 July 2005. That application was
supported by an affidavit deposed to by Mr Vaatz.

[9] The reason for seeking
condonation is set out in paragraph 3 of the supporting affidavit of
Mr Vaatz. It is necessary to quote the entire paragraph which
appears on pp. 126 to 127 of the record verbatim:

“3.

APPLICATION FOR CONDONATION

Immediately after the
Honorable Acting Judge Shikongo made the order in this matter I
realised that it was incorrect and more specifically the order
regarding to costs were extremely unfair and without substance. I
accordingly filed a Notice of Appeal to the Supreme Court on the 12^th
of July 2005, a copy of which I annex hereto marked Annexure "A".
At that time I was under the impression that an order for costs - and
the Notice of Appeal states that the appeal is only against the cost
order - was a final order and thus appealable.

In the meantime, I had
written a letter to the Respondent's legal practitioner, Mr Bloch, a
copy of which is annexed hereto marked Annexure "B" and
requested him to come to an agreement with me regarding the security
for costs of the appeal, but he did not answer to that letter. When I
met Mr Bloch at the office of the Registrar on the 27^th of
September 2005 I asked him why he does not answer to the question of
how much security he requires for the appeal, he told me that in his
view there was no appeal. This remark caused me once again to peruse
the Rules and the High Court Act and it is only then that I
discovered to my surprise that in terms of Section 18(3) of
the High Court Act No 16 of 1990 - one section that was not
amended by the Appeals Laws Amendment Act 2001 - it is still
required in respect of interlocutory orders and orders as to costs to
apply for "leave to appeal" before one is entitled to note
an appeal. This means that I only then became aware that I must make
an application for leave to appeal in order to enable me to take the
order for costs on appeal to the Supreme Court. I accordingly pray
that it may please this court to condone the late filing of this
application for leave to appeal.”

[10] It is not necessary to
refer to the requirements for condoning non-compliance with the Rules
of Court, save that a party seeking such condonation has to explain
to the satisfaction of the Court why there was not compliance with
the applicable Rules of Court and to show cause, in the sense of
satisfying the Court that there is a prospect of success on appeal.
It is further trite that the Court has a discretion to condone such
non-compliance, or not. In this regard Plewman JA said the following
in Darries v Sheriff, Magistrate’s Court, Wynberg, and Another,
1998 (3) SA 34 at 40 G – 41 D:

“The number of petitions
for condonation of failure to comply with the Rules of this Court,
particularly in recent times, is a matter for grave concern. The
reported decisions show that the circumstances which have led to the
need for applications for condonation of breaches of the Rules have
varied widely. But the factors which weigh with the Court are factors
which have been consistently applied and frequently restated. See
Federated Employers Fire and General Insurance Co Ltd and Another
v McKenzie 1969 (3) SA 360 (A) at 362F-H; United Plant Hire
(Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) at 720E-G.

I will content myself with
referring, for present purposes, only to factors which the
circumstances of this case suggest should be repeated. Condonation
of the non-observance of the Rules of this Court is not a mere
formality (see Meintjies v H D Combrinck (Edms) Bpk 1961 (1)
SA 262 (A) at 263H-264B; Saloojee and Another NNO v Minister of
Com­munity Development 1965 (2) SA 135 (A) at 138E-F). In all
cases some acceptable explanation, not only of, for example, the
delay in noting an appeal, but also, where this is the case, any
delay in seeking condonation, must be given. An appellant should
whenever he realises that he has not complied with a Rule of Court
apply for condonation as soon as possible. See Commissioner for
Inland Revenue v Burger 1956 (4) SA 446 (A) at 449F-H;
Meintjies's case supra at 264B; Saloojee's case
supra at 138H. Nor should it simply be assumed that, where
non-compliance was due entirely to the neglect of the appellant's
attorney, condonation will be granted. See Saloojee's case
supra at 141 B-G. In applications of this sort the appellant's
prospects of success are ill general an important though not decisive
consideration. When application is made for condonation it is
advisable that the petition should set forth briefly and succinctly
such essential information as may enable the Court to assess the
appellant's prospects of success. See Meintjies's case supra
at 265C-E; Rennie v Kamby Farms (Ply) Ltd 1989 (2) SA 124
(A) at 131E-F; Moraliswani v Mamili 1989 (4) SA 1 (A) at 10 E.
But appellant's prospect of success is but one of the factors
relevant to the exercise of the Court's discretion, unless the
cumulative effect of the other relevant factors in the case is such
as to render the application for condonation obviously unworthy of
consideration. Where non-observance of the Rules has been flagrant
and gross an application for condonation should not be granted,
whatever the prospects of success might be. See Ferreira v
Ntshingila 1990 (4) SA 271 (A) at 28lJ-282A; Moraliswani v
Mamili (supra at l0 F); Rennie v Kamby Farms (Ply) Ltd (supra
at 131H); Blumenthal and Another v Thomson NO and
Another 1994 (2) SA 118 (A) at 121I -122B.”

[11] Mr Vaatz avers in terms of
the first paragraph of the quoted paragraph 3 of his affidavit
supporting the Notice of Appeal that he immediately after
Shikongo AJ made the order, realized that it was incorrect and more
particularly the costs order. Accordingly he filed a notice of
appeal dated 12 July 2005. This allegation is of cause incorrect.
The order was already made on 1 July 2005. From the notice of appeal
attached by Mr Vaatz to his application for leave to appeal it also
appears that, although that notice of appeal was dated 12 July
2005 and was served on Mr Bloch on 15 July 2005, it was only filed
with the Court on 24 August 2005. The Registrar’s stamp clearly
indicates the date that the notice of appeal was filed, which was
more than one and a half months after the order was made and more
than a month after the reasons for that order were provided. No
further explanation is provided for this inconsistency by Mr Vaatz in
his own affidavit.

[12] Furthermore, Mr Vaatz
makes the allegation in the first paragraph of the quoted paragraph 3
of his affidavit that he was under the impression at that stage that
a notice of appeal would suffice, which was a final and appealable
order. However, if this was his impression, his notice of appeal was
in any event filed out of time as he had 21 days to file it after the
order was made, or at least from the time when the reasons were
given, namely on 21 July 2005. Again no explanation is
provided why this was not done.

[13] Turning to the second
paragraph of the quoted paragraph 3 of the affidavit of Mr Vaatz, I
find his conduct quite incomprehensible. Leave to appeal was always
required in appeals against cost orders. This was so in terms of
section 20(2)(b) of the South African Supreme Court Act no. 59 and
1959 and is still so in terms of section 18(3) of the High Court Act
of Namibia, no. 16 of 1990. The legislator’s intention was to
discourage appeals of this nature.

See: Lendalease Finance
(Pty) Ltd v Corporacion De Mercadeo Agricola and Others
1976 (4) SA 464 (A) at 488 D;

Delmas Ko-operasie Beperk v
Koen 1952 (1) SA 509 (T) at 510 E – F; and

Tsosane and Other v
Minister of Prisons 1982 (3) SA 1075 (C) at 1076 D

In the Lendalease
Finance-case, supra, Corbett JA (as he then was)
expressed his agreement with Millin J’s remark in the Delmas-case,
supra, where the latter stated:

“…it seems to me the
intention of the Legislature was to make the test: what is the appeal
against? If you are appealing against costs only but in no way
appealing against any part of the judgment on the merits of the case,
then the Legislature wished to discourage such appeals, and the
manner selected for limiting them was to say that the Full Court
should not be approached without the leave of the Judge who made the
order.”

In the Tsosane-case King
AJ (as he then was) set out the principles to be observed in an
application for leave to appeal on p. 1076 E – p. 1077 A. These
principles are summarised in Erasmus Superior Court Practice
A1 – 50 (i) – (v):

1. 
   Such leave is not lightly
   given – firstly because costs are ordinarily a matter of judicial
   discretion; and secondly, because it is desirable that finality
   should be reached where the merits of a matter have been determined.

   
   

2. 
   The court will not
   ordinarily grant leave to appeal in respect of what has become a
   dead issue merely for the purpose of determining the appropriate
   order as to costs.

   
   

3. 
   Leave will more readily be
   granted where a matter of principle is involved.

   
   

4. 
   The amount of costs
   involved should not be insubstantial.

   
   

5. 
   The applicant for leave to
   appeal should have a reasonable prospect of success on appeal.
   

   
   

[14] Mr Vaatz further annexed
the letter that he wrote to Mr Bloch to his affidavit in respect of
coming to an arrangement with regard to security for costs and
thereafter met Mr Bloch at the Registrar’s office on 27 September
2005, at which occasion he discovered the reason why Mr Bloch did not
answer his letter. In his affidavit he says that only after this
date he once again perused the appropriate legal requirements and
discovered that he needed leave to appeal. Mr Bloch was of course
quite right to ignore the Applicant’s notice to appeal in the
circumstances.

[15] A legal practitioner has a
duty of care towards his client and towards the Court to apply the
Rules of Court properly, which implies that he/she must know the
Rules of Court, or at least make sure that he/she knows what the
particular Rule requires before he/she applies it. With regard to
this application of the Rules of Court, Slomowitz AJ made the
following introductory remarks in the case of Khunou and Others v
Fihrer and Sons 1982 (3) SA 353 (WLD) at 355 F – 356 D:

“The proper function of a
Court is to try disputes between litigants who have real grievances
and to see that justice is done. The Rules of Civil Procedure exist
in order to enable Courts to perform this duty with which, in turn,
the orderly functioning, and indeed the very existence, of society is
inextricably interwoven. The Rules of Court are in a sense merely a
refinement of the general rules of civil procedure. They are
designed not only to allow litigants to come to grips as
expeditiously and as inexpensively as possible with the real issues
between them, but also to insure that the Courts dispense justice
uniformly and fairly and that the true issues which I have mentioned
are clarified and tried in a just manner.

Of course the Rules of
Court, like any set of rules, cannot in their very nature provide for
every procedural situation that arises. They are not exhaustive and
more over are sometimes not appropriate to specific cases.
Accordingly the Superior Courts retain an inherent power exercisable
within certain limits to regulate their own procedure and adapt, and,
if needs be, the Rules of Court, according to the circumstances.
This power is enshrined in section 43 of the Supreme Court Act 59 of
1959.

It follows that the
principles of adjectival law, whether expressed in the Rules of Court
or otherwise, are necessarily flexible. Unfortunately this
concomitant brings in its train the opportunity for unscrupulous
litigants and those who wish to delay or deny justice to so
manipulate the Court’s procedures that their true purpose is
frustrated. Courts must be ever vigilant against this and other
types of abuse. What is more important is that the Court’s
officers, and especially its attorneys, have an equally sacret duty.
Whatever the temptation or provocation, they must not lend themselves
to the propagation of this evil, and so allow the administration of
justice to fall into disrepute. Nothing less is expected of them,
and if they do not measure up a Court will mark its disapproval
either by an appropriate order as to costs against the defaulting
practitioner or, in a proper case, by referring the matter to the Law
Society for disciplinary action.

Attorneys, whatever their
personal likes and dislikes of one another may be, must ensure that
the Rules serve their true purpose. Not only must they not permit
and indeed must they prevent their client from using the Rules in the
manner to which I have referred, they must themselves not use, or
rather abuse, the Rules, merely in order to vent their spleen on one
another.”

Even the South African Appeal
Court had on occasion pronounced on the duty of an attorney – a
legal practitioner in Namibia. Wessels JA said the following in his
judgment as reported on p. 92 B – E in Reinecke v Incorporated
General Insurances Pty 1974 (2) SA 84 (A):

“From the affidavits filed
in support of the Notice of Motion, it appears that Appellant is in
no way personally at fault in regard to the non-compliance with the
Rules of this Court in respects set out above. From the affidavits
sworn by his attorney, it appears that the latter’s failure to
lodge the Notice of Appeal and the record flowed from his ignorance
of the Rules of this Court governing the procedure prescribed in
regard to the noting and prosecution of an appeal. It is lamentable
for an attorney to excuse his failure to comply with the Rules of
this Court on the basis of his ignorance thereof. The more so when,
as in this case, his failure to comply with the Rule requiring the
lodging of a notice of appeal alerted him to the need to consult the
Rules as to the further steps to be taken in the prosecution of the
appeal. He did not do so; hence his failure to comply with the Rule
relating to the lodging of the record. It is a matter of concern
that, despite repeated references in reported judgments of this Court
to the kind of default hereunder discussion, ignorance of the Rules
of this Court continues to result in non-compliance therewith. (See
eg, Rose and Another v Alpha Secretaries Limited, 1947 (4) SA
511; S v Yusuf, 1968 (2) SA 52; Federators Employers Fire
and General Insurance Company Ltd and Another v McKenzie, 1969
(3) SA 360, and S v Brick, 1973 [2) SA 571)”

[16] In terms of Rule 27(3) of
the Rules of this Court, the Court is entitled to condone any
non-compliance with the Rules of Court on good cause shown. In this
regard the Court has a discretion. The principles upon which such a
discretion is exercised have been set out in several cases, namely
that there must be a satisfactory explanation furnished for the delay
and that the party requesting the condonation must have a bona
fide case.

See: Erasmus: Superior
Court Practice B1 – 71 - 72

In respect of the first
requirement it has been held that the Court will refuse to grant
condonation when there has been a reckless and intentional disregard
of the Rules of this Court.

[17] Although the period of 15
days for applying for leave to appeal only ran from 21 July 2005, the
date when the Judge’s reasons were delivered, Mr Vaatz knew from
the day when the order was made, namely 1 July 2005 what the order
was and he could already from that date commenced perusing the
applicable Rules of Court and the High Court Act, as well as the
applicable amendments. Then he would have been in a position to know
what would be required when the reasons were delivered. Even if he
did not do that, he had 15 days to apply for leave to appeal after
the 21^st July 2005 when the Judge’s reasons were given.
Such application had to be made within 15 Court days, namely it had
to be filed with the Registrar not later than 11 August 2005,
according to my calculations. Despite all this, Mr Vaatz continued
under the impression that he only needed to file a Notice of Appeal,
which he eventually did on 24 August 2005. He only applied for
condonation and leave to appeal on 4 October 2005, despite being
informed (on his own version) by Mr Bloch on 27 September 2005 that
there is no appeal, which prompted him to properly peruse the
appropriate Rules, the High Court Act and appropriate amendments. It
again took him nearly a week to apply for condonation and for leave
to appeal. I doubt it that it would take any legal practitioner more
than an hour to ascertain to what is required in terms of Rule 49,
section 18(3) of the High Court Act no. 16 of 1990 and section 3 of
the Appeal Laws Amendment Act, no. 10 of 2001.

[18] An applicant applying for
condonation in fact requests the Court’s indulgence and has to
provide a satisfactory reason or reasons for the failure to comply
with the legal requirements, in this case to timeously apply for
leave to appeal. The Court has to rely on the veracity and the truth
of the reasons provided. In this matter Mr Vaatz did not put the
correct facts before the Court in his supporting affidavit, as
referred to earlier herein. Furthermore, Mr Vaatz conceded that he
did not comply with the appropriate Rule of Court. The only
inference to be drawn from this is that he did not know it. The
legal position and the attitude of the Court have been spelled out in
the decisions quoted by me earlier herein and in particular in the
passage in Darries-case quoted in extenso by me in
paragraph [10] hereof. A legal practitioner should either know the
requirements set out in the appropriate Rule or Acts and even if he
does not know it, he has to peruse the appropriate provisions
immediately, but definitely before he takes any action. Mr Vaatz
nearly had a month after the order was made, but before the reasons
were delivered, to do this. Even thereafter he waited for nearly
another month before filing a Notice of Appeal with the Registrar.

[19] Although a reasonable
prospect of success in the appeal is a further requirement, the
Applicant in my submission failed to cross the first hurdle, namely
to provide a satisfactory explanation for his failure to apply for
leave to appeal in time. The correct way of dealing with such a
situation, has in my opinion been set out by Plewman JA in the
Darries-case quoted in paragraph [10] above.

[20] In the light of the
decision I have arrived at, it is not necessary to deal with the
arguments submitted in respect of the prospect of success and in
particular the arguments advanced by Mr Frank in this regard.
Consequently, the first prayer of the Applicant for condonation is
refused.

[21] There was no opposition to
the application. The only costs that I am aware of is those of Mr
Vaatz himself. Consequently, no cost order in respect of this
application will be made.

[22] Condonation is refused and
the application for leave to appeal is dismissed.

_______________

MULLER A J