REPORTABLE

CASE NO. SA 6/2009

IN THE
SUPREME COURT OF NAMIBIA

In the matter between:

ONDJAVA CONSTRUCTION CC FIRST APPELLANT

V.M. KAUTWIMA SECOND APPELLANT

B. HAIDUWA
THIRD APPELLANT

and

H.A.W. RETAILERS

t/a ARK TRADING RESPONDENT

Coram: MARITZ,
JA, CHOMBA AJA et
LANGA, AJA

Heard on: 2010/03/05

Delivered on: 2010/03/08

APPEAL JUDGMENT

________________________________________________________________________

MARITZ, J.A.: [1] Subject
to the provisions of s 18(5) of the High Court Act, 1990¹
and rule 4(12) of the Supreme Court Rules²,
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.³
   This, in essence, is also the construction given by this Court to
   the sub-rule.⁴
   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 appeal⁵;
   that the judgment of the High Court, suspended both under the
   provisions of the Rules⁶
   and at common law⁷
   by the appeal may be carried into execution⁸
   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,⁹
   to mention a few.
   

   
   

2. 
   The appellants, who appealed against a judgment
   of the High Court dismissing their application for rescission of a
   default judgment in the amount of N$585 094.99, interest and costs
   granted in favour of the respondent, failed to comply with the
   requirements of rules 5(5) and 8(3). Although they lodged the record
   of appeal with the registrar of the Court timeously, they failed to
   deliver copies thereof to the respondent - as they should have done
   in terms of rule 5(5). In addition, knowing full-well that the
   respondent demanded security in the amount of N$60 000.00, they
   failed to inform the registrar at the time they lodged the record
   whether they had entered into security with it. Their remissness
   caused the respondent to launch an application on notice of motion
   seeking dismissal of the appeal with costs. This application, filed
   some nine months ago, prompted the appellants to provide the
   respondent with copies of the record of appeal and to seek
   determination by the registrar of the security to be entered into.
   Notwithstanding the security having been fixed in the amount of N$50
   000.00, they failed to find it. These failures notwithstanding, they
   boldly sought a date for the hearing of the appeal through the
   offices of their legal representatives. Given the application to
   dismiss the appeal and the fact that there was also a cross-appeal
   by the respondent, the matter was set down for hearing on Friday, 5
   March 2010, and the litigants were informed accordingly by the
   registrar.
   

   
   

2. 
   To make matters worse, the record of appeal was
   incomplete because it contained no reference to the order or
   proceedings which was the subject matter of the cross-appeal and, in
   addition, the appellants' counsel failed to file heads of argument
   as prescribed by rule 11(1). In the absence of an application for
   condonation and reinstatement of the appeal and the significant
   extent in which the appellant, in particular, had failed to comply
   with the rules, the Court caused the registrar to write a letter to
   the litigants' legal practitioners of record notifying them that, in
   addition to any argument which they might advance on behalf of their
   clients, they would also be required to address the question whether
   the appeal and cross-appeal should not be struck off for want of
   compliance with the rules. Shortly after receipt of this notice, the
   appellants' legal practitioners withdrew as their counsel of record
   and, when the matter was called before us, the second appellant
   appeared in person. He also claimed that he was authorised by the
   first and third appellants to appear on their behalf. He explained
   to the Court from the bar that the appellants had found some funds
   to pay their legal practitioners and that, relying upon the kind
   offices of a friend, they would be able to pay the balance shortly.
   He thereupon moved an application for a postponement of the appeal.
   The application was opposed by Mr Grobler, appearing on behalf of
   the respondent, who, in turn, pressed the respondent’s
   application for dismissal of the appeal.

   
   

2. 
   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. This, in essence is also the approach adopted by
   the South African Supreme Court of Appeal on similar rules in an
   appeal which emanated from this jurisdiction in the matter of
   Moraliswani v Mamili:¹²

   
   

“Several
points call for comment. Mr Ruppel expresses an understanding that
the petition would be heard and determined 'simultaneously with the
appeal itself'. This is a misconception. The true position is that a
date for the hearing of an appeal cannot be fixed until Rule 6 has
been complied with or condonation for non-compliance granted (Rules
7.1 and 13). Indeed there is strong authority for the proposition
that failure to comply with Rule 6 causes an appeal to lapse, and
that condonation by this Court is needed to revive it. (See Vivier
v Winter; Bowker v Winter
1942 AD 25; Bezuidenhout
v Dippenaar
1943 AD 190 at 192; and United
Plant Hire (Pty) Ltd v Hills and Others
1976 (2) SA 697 (D) at 699C - 700A. See also Waikiwi
Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd
1981 (1) SA 1040 (A) at 1049B - C; and S
v Adonis
1982 (4) SA 901 (A) at 907F - G dealing with the related subject of
an appellant's failure to file the record in time.)

In the
absence of a petition for condonation there was accordingly nothing
for this Court to consider and, in particular, no appeal could be
heard until condonation had been granted. This, incidentally, was the
reason why the matter was struck from the roll on 20 February 1987.
Had there been an appeal before the Court on 20 February 1987, the
usual course would have been to dismiss it for non-prosecution in
terms of Rule 7(2) and this course might well have been followed.

Mr Ruppel's
understanding was therefore erroneous. There was no way in which the
petition for condonation could be heard simultaneously with the
appeal itself. At most the parties' arguments on the petition (and,
in particular, their contentions on the petitioner's prospects of
success) could have been treated as constituting also their arguments
on appeal if condonation were to be granted. That, however, is
another matter, and the possibility that this course might be
followed did not afford any reason for supposing that the submission
of a petition for condonation was not a matter of urgency.”

2. 
   The ratio in
   Mamili’s
   case also explains why it will not be proper to dismiss the first
   and third appellants’ appeal as a result of their failure to
   appear and prosecute their appeal in person or by counsel as is
   required by rule 10(2) - it being clear that the second respondent,
   a layperson in law, has neither actual nor legal authority to appear
   on their behalf.¹³
   It also underscores why the respondent’s application for
   dismissal of the appeal with costs and the second appellant's
   application for postponement of the appeal are misconceived and fall
   to be dismissed: the appeal having lapsed, there is no appeal
   currently before the Court which can either be dismissed or
   postponed. I hasten to add, that even if it would have been
   competent for the Court to consider the application for postponement
   of the “appeal”, I would have been disinclined to allow
   it, given the history of the appellants' frequent disregard of the
   Rules of this Court and those of the High Court as well as the
   absence of an explanation on affidavit showing good cause why the
   appellants have failed to comply with the Rules; why they have
   failed to timeously bring an application for condonation and
   reinstatement of the appeal; why they have not taken the necessary
   action to ensure that they would be ready to proceed with the appeal
   on the date of hearing; why they have not taken steps during the
   preceding year to place their legal representatives in funds and why
   they have not offered to find and provide security to the
   respondent. Moreover, the assurances of the second appellant from
   the bar notwithstanding, it is does not appear that there is any
   measure of certainty that the person, on whose goodwill they rely to
   provide the balance of the funds required to prosecute the appeal,
   will be forthcoming. The person has not been identified; there is no
   affidavit from him confirming his commitment and ability to assist
   the appellants and, if so, on which conditions it will be done. One
   may have sympathy for the appellants' apparent difficulties to place
   and keep their legal representatives in funds, but, as Holmes JA
   remarked:¹⁴
   “Litigation is a serious matter and, once having put a hand to
   the plough, the applicant should have made arrangements to see the
   matter through.” If indigent, there were a number of options
   available to them. The requirement of security is dispensed with
   both in pauper-proceedings¹⁵
   and in instances where legal aid is rendered by or under any law,¹⁶
   unless the Court directs otherwise. In addition, if they had good
   cause, an application could also have been made in the High Court
   within 15 days after delivery of the appellants' notice of appeal to
   release the appellants wholly or partially from the obligation to
   provide security.¹⁷
   The appellants did not pursue any of these options and one must
   infer that they have not done so either because they did not qualify
   or had no need to do so. An appellant cannot simply move an appeal
   forward at a speed which meets his or her convenience.¹⁸
   After all, the respondent has an interest in the finality of the
   judgment obtained. So does the Court in avoiding an unnecessary
   delay in the administration of justice.¹⁹

   
   

2. 
   On the view I take, there is also no cross-appeal
   before us. The failure of the appellants to inform the registrar in
   writing that they have entered into security in compliance with rule
   8(3), as pointed out earlier in the judgment, is deemed to be a
   failure to file the record of appeal in compliance with the
   provisions of rule 5(5). Such failure is again deemed by rule
   5(6)(b) to constitute a withdrawal of the appeal. Hence, the
   respondent, having noted a cross-appeal, was required by rule
   5(6)(a) to notify the registrar in writing that it was of the
   intention to prosecute the cross-appeal (if so minded or advised).
   Thereupon the respondent would have been deemed to be the appellant
   for purposes of rule 5(5) and, amongst others, would have had the
   duty to see to it that the record of appeal would be in order for
   consideration of the cross-appeal. There is no indication that the
   respondent has notified the registrar of its intention to pursue a
   cross-appeal. In the circumstances, it must be deemed that the
   cross-appeal was discontinued and, for that reason, lapsed.
   Moreover, the record is not in order: the judgment, which is the
   subject matter of the cross-appeal, is not even part of it.

   
   

2. 
   In the result, both the appeal and cross-appeal
   have lapsed. As a matter of formality they fall to be "posthumously"
   struck off the roll. Costs should follow the result. Inasmuch as the
   appellants may in future seek to apply for condonation and
   reinstatement of the appeal, the Court must mark its displeasure
   with the disregard which they have shown for the Rules of Court and
   the litany of instances cited by the respondent where they had also
   done so in the Court a quo.
   Therefore, I propose that the set down of any application for
   condonation and reinstatement must be conditional on the finding of
   security and payment of the respondent’s costs occasioned by
   striking off the appeal.
   

   
   

2. 
   In the premises, the following order is made:
   

   
   

1. The second appellant’s application for
postponement of the appeal is dismissed with costs.

2. The respondent's application for dismissal of
the appeal is dismissed with costs.

3 The appeal is struck off the roll with costs.

4. The cross-appeal is struck off the roll with
costs.

5. In the event that the appellants, or the one or
other of them, apply for condonation and reinstatement of the appeal,
it is directed that such application may not be set down for hearing
unless appellants have paid the respondent’s taxed costs
occasioned by the striking off of the appeal within 3 months of
demand (such costs to be taxed within 3 months of the date of this
order) and the appellants (or the one or other of them seeking
condonation and reinstatement) has not entered into good and
sufficient security for the respondent’s costs of appeal within
six months of the date of this order.

MARITZ, J.A.

I concur.

___________________

CHOMBA,
A.J.A.

I concur.

___________________

LANGA,
A.J.A.