REPORTABLE

CASE NO.: SA 23/2011

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

CORAM: MAINGA JA, STRYDOM AJA
and MTAMBANENGWE AJA

Heard on: 19 March 2013

Delivered on: 26 June 2013

APPEAL JUDGMENT

MTAMBANENGWE AJA (MAINGA JA and
STRYDOM AJA concurring)

1. 
   This appeal is against the whole
   judgment of Damaseb JP delivered in the High Court on 24 March 2011.

   
   

2. 
   In the application before the High
   Court, appellant sought the following relief:

   
   

‘1.
Reviewing and setting aside the decision of the first respondent, as
reflected in building permit issued on 18 March 2008, approving
building plans in respect of erf 95 Langstrand (‘the
property’);

2.
Alternatively to paragraph 1 above, reviewing and setting aside the
decision of the first respondent, as reflected in building permit
issued on 30 May 2005, approving building plans in respect of the
property;

3.
Declaring that the construction of the dwelling houses on the
property is in contravention of the first respondent’s town
planning scheme;

4.
Directing the second respondent to demolish such dwelling houses,
alternatively such portion thereof as may be necessary to comply with
the provisions of the first respondent’s town planning scheme;

5.
Pending demolition and in any event, interdicting and restraining the
second respondent from using or occupying, or causing or permitting
to be used or occupied, the said dwelling houses.

6.
Directing that the first respondent pay the costs of this
application, jointly and severally with such other respondent who may
oppose.

7.
Granting further and/or alternative relief.’

3. 
   A number of points in limine
   were raised by first respondent and were decided by the Court. The
   most critical of these points concerned the question of unreasonable
   delay by the appellant (as applicant then) to launch the
   application. The Court a quo found that the delay was
   unreasonable and refused appellant’s application for
   condonation of the same and, consequently, dismissed the
   application.

   
   

4. 
   At the hearing of this matter various
   applications for condonation of non-compliance with rules of this
   Court served before us and my brother Strydom AJA remarked that it
   was inevitable to come to the conclusion that very little attention
   was given to this important matter. An analysis of the founding
   affidavit and the supporting affidavit in the application for
   condonation and reinstatement of the appeal that was made on behalf
   of the appellant will amply illustrate that indeed very little
   attention to the rules was given in this matter. I proceed to do so.

   
   

5. 
   Before embarking on that analysis, I
   think it is necessary to refer to some authorities regarding what a
   legal practitioner instructed to note an appeal is expected to do,
   and about the consequences of the failure to observe or breaches of
   the rules.

   
   

6. 
   In Ferreira v Ntshingila 1990
   (4) SA 271 (A), Friedman AJA said at 281G:

   
   

‘An
attorney instructed to note an appeal is in duty bound to acquaint
himself with the Rules of the Court in which the appeal is to be
prosecuted. See Moaki
v Reckitt and Colman (Africa) Ltd and Another
1968
(3) SA 98 (A) at 101; Mbutuma
v Xhosa Development Corporation Ltd
1978
(1) SA 681 (A) at 685A-B. Inasmuch as an applicant for condonation is
seeking an indulgence from the Court, he is required to give a full
and satisfactory explanation for whatever delays have occurred.’

The Learned Acting Judge of Appeal
went on to say at 281J-282A:

‘As
far as the prospects of success on appeal are concerned, the appeal
in the present case would not appear to be without merit. However,
where the non-observance of the Rules has been as flagrant and as
gross as in the present case the application should not be granted,
whatever the prospects of success might be. See P
E Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty)
Ltd 1980 (4) SA 794 (A) at 799; Rennie
v Kamby Farms (Pty) Ltd1989
(2) SA 124 (A)at 131I–J.’

7. 
   In Aymac CC and Another v Widgerow
   2009 (6) SA 433 (W) gross ignorance by the attorney of the rules
   governing the appeal was shown; the Court (Gautschi AJ) stated at
   450H-I:

   
   

‘[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.’

And at 451-452A:

‘[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. See PE
Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd
1980 (4) SA 794 (A) at 799B-H; Rennie
v Kamby Farms (Pty) Ltd
1989 (2) SA 124 (A) at 131I-J; Ferreira
v Ntshingila
1990 (4) SA 271 (A) at 281G-282A; Blumenthal
and Another v Thomson NO and Another
1994 (2) SA 118 (A) at 121C -122C. 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.’

8. 
   In my opinion, the above principles
   must apply mutatis mutandis to the present matter. At page
   452C para [40] in the Aymac CC case, supra, the Acting
   Judge remarked:

   
   

‘[40]
There is a further reason why the court should not grant condonation
or reinstatement in the face of gross breaches of the rules.
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 Ltd and Another v McKenzie
1969 (3) SA 360 (A) at 363A where 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; see Cairns'
Executors v Gaarn
1912 AD 181 at p. 193, in which SOLOMON, J.A., said:

‘After
all the object of the Rule is to put an end to litigation and to let
parties know where they stand.’ ” ’

9. 
   I proceed to analyse what happened in
   this matter and the explanation for the many mistakes and/or
   omissions made by the legal practitioners that acted on behalf of
   the appellant,namely, the local legal practitioner of record for the
   appellantand the instructing legal practitioner under the name and
   style of Kinghorn Associates. The latter is the original instructed
   legal practitioner of appellant practising at Swakopmund, while the
   former is the Windhoek correspondent of the latter. The former swore
   the founding affidavit while the latter swore the supporting
   affidavit in the condonation and reinstatement application (the main
   or first application).

   
   

10. 
    I refer to the main or first
    application because two applications were filed, the first on 24
    July 2012 and the other on 16 August 2012; the reason therefor is
    not apparent. However, nothing turns on that fact; what is important
    is that both applications are wrongly titled as application in terms
    of Rule 12, and condonation is prayed for:

    
    

‘1.
The non-compliance of Rule 8 and 9 of the Supreme Court Rules.’

This shows that little, if any,
attention was paid to the rules, as my brother Strydom AJA pointed
out at the hearing; rule 12 in terms of which the applications are
brought was a rule of the South African Appellate Division. The rule
in terms of which condonation can be asked for in our jurisdiction is
of course Rule 18. The mistake was repeatedly made and still appears
in the heading of the index which was amended as late as 19 March
2013. Had either legal practitioner in this matter read the rules
they would not have failed to notice the obvious mistakes they were
making.It seems they proceeded with the attitude that any mistakes
made did not matter as long as one could later apply for condonation.

11. 
    The application(s) for condonation
    and reinstatement were brought only after the local legal
    practitioner had advice from her correspondentwho advised her to
    seek advice from the counsel then apparently acting for the
    appellant. That advice was received on 26 June 2012 and after a
    consultation with the said counsel ‘on the way forward’.
    According to her founding affidavit the said advice and consultation
    led to the lodging of the application. It is clear from the papers
    that the application when lodged because of a realisation, inter
    alia, that:

    
    

1. 
   Rule 5(6)(b) had not been
   fully complied with in that only one of the legal practitioners Mr
   Metcalfe representing the respondent had consented to the extension
   of the filing of the record to 18 July 2011, and the registrar of
   the Supreme Court had not been given notice in writing of the
   application for extension.

   
   

2. The bonds of security for the costs
of the respondents had been filed at the High Court instead of the
Supreme Court which she was later advised ‘is a material defect
in the process and that condonation would be required.’

3. The bonds of security had not been
lodged in accordance with rule 8(3) which provides:

‘(3)
if the execution of a judgment is suspended pending appeal, the
appellant shall, when copies of the record are lodged with the
registrar, inform the registrar in writing whether he or she–

1. 
   has
   entered into security in terms of this rule; or

   
   

2. 
   has
   been released from the obligation, either by virtue of waiver by the
   respondent or release by the Court appealed from, as contemplated in
   subrule (2),

   
   

and
in failure to inform the registrar accordingly within the period
referred to in rule 5(5) shall be deemed to be failure to comply with
the provisions of that rule.’

12. 
    For the sake of completeness I repeat
    herebelow the provisions of other relevant rules in this
    regard,namely, rule 8(2), rule 5(5) and rule 5(6). Rule 8(2)
    provides:

    
    

‘If
the execution of a judgment is suspended pending appeal, 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-

1. 
   the
   respondent waives the right to security within 15 days of receipt of
   the appellant’s notice of appeal; or

   
   

2. 
   the
   court appealed from, upon application of the appellant delivered
   within 15 days after delivery of the appellant’s notice of
   appeal, or such longer period as that court on good cause shown may
   allow, releases the appellant wholly or partially from that
   obligation.’

   
   

Rule 5(5) provides:

‘After
an appeal has been noted in a civil case the appellant shall, subject
. . .

(a)
…

(b)
in all other cases within three months of the date of the judgment or
order appealed against or, . . .

(c)
within such further period as may be agreed to in writing by the
respondent,

lodge
with the registrar four copies of the record of the proceedings in
the court appealed from, and deliver such number of copies to the
respondent as may be considered necessary: Provided that -

(i)
…

2. 
   …’

   
   

Rule 5(6)(b) provides:

‘If
an appellant has failed to lodge the record within the period
prescribed and has not within that period applied to the respondent
or his or her attorney for consent to an extension thereof and given
notice to the registrar that he or she has so applied, he or she
shall be deemed to have withdrawn his or her appeal.’

13. 
    It will be noted that the supporting
    affidavit repeatedly refers to rule 6(5)(b) (see paras 5.2,
    5.3,6, 7, 8 and 11 thereof) which does not exist as far as our rules
    are concerned. This repeated mistaken reference to rule 6(5)(b)
    is made in the affidavit despite the assertion that in December 2011
    she ‘had occasion to peruse the file as part of the routine in
    my practice’ when she ‘then noticed that the bonds of
    security had been filed in the High Court instead of the Supreme
    Court’. She was not in a position to give any explanation for
    her lack of attention to the rules, or her casual or lackadaisical
    attentionthereto.

    
    

14. 
    In paragraph 6 of her affidavit, she
    seeks condonation having realised that her notices ‘in terms
    of rule 6(5)(b) were flawed’. In the same paragraph she pleads
    being under ‘severe pressure of work as a number of matters
    came to a head at the same time requiring urgent attention’.
    Whatever pressure of work she might have been under does not explain
    why agreements with respondents were not made timeously to comply
    with the requirements of rule 8(3). In paragraphs 8 and 9 of her
    affidavit the local legal practitioner reveals her and the other
    legal practitioner’s wrong interpretation of rule 8(3) when
    she states:

    
    

‘8.
At the time my instructing legal practitioner and I sought an
agreement with the legal practitioners for the respondents regarding
the security for costs, we
were both under the impression that we had a two month extension
interms of the provisions of Rule 6(5)(b) for the filing of the
record and thatthis extension applied to the period within which
security had to be lodged as well.

9.
At the time, Mr Hamman and I also
did not see the filing of security for costs after the filing of the
record as a problem because we interpreted rule 8(3) read with rule
5(5)(c) of the rules of this honourable court as allowingfor that,
in the light of the agreement
reached between Mr Hamman and the
opposing legal practitioners.’ My emphasis.

A reading of rule 5(5)(c)
together with rules 8(3) and 5(6)(b) clearly shows that an
extension of the period within which to file the record of
proceedings can only be achieved through an agreement with the
respondent parties and cannot be granted by the registrar. Notice to
the registrar merely suspends the lapsing until an answer has been
obtained from the respondent parties. If they refuse to agree that is
the end of the matter and an application for condonation would be
necessary. In this instance further extension of the period was
immediately refused by Mr Metcalfe. Under the circumstances the
explanation given by appellant’s legal practitioners, that they
were under the impression that they had a further twomonths to deal
with the issue of security before the lapsing of the appeal, is
unacceptable and again demonstrates the practitioners’
ignorance of the relevant rules. In any event the notices given to
the registrar in which a further two months extension was requested
were also flawed.

15. 
    Suffice it to say that in his
    supporting affidavit the instructing legal practitioner who states
    that he ‘read the founding affidavit and confirms the content
    thereof …’ clearly associates himself with the mistakes
    his colleague committed. In other words, he also reveals a casual or
    lackadaisical attention or lack of attention to the rules. Realising
    this, he on a number of occasionssought condonation of the mistakes
    made or omissions committed.

    
    

16. 
    To crown it all, some few days before
    the hearing of this matter another notice of application for
    condonation was filed on 14 March 2013 and brought to our attention
    on the day of hearing. This time the condonation is craved for
    failure to comply with a simple but mandatory rule for this Court,
    rule 5(1). The local legal practitioner says she only discovered the
    omission to lodge the notice of appeal with the registrar of the
    High Court when she read the heads of argument of the first
    respondent. These were filed and served on 4 March 2013. It still
    took her up to 14 March to make the application. I find the
    explanation offered unacceptable, that the omission was due to the
    fact that counsel who prepared the notice of appeal ‘inadvertently
    failed to include the Registrar of the High Court amongst the
    addresses’. Rule 5(1) is the first rule that a legal
    practitioner instructed to note an appeal should pay attention. The
    lack of attention in this regard is completely inexcusable.

    
    

17. 
    In the PE Bosman Transport
    Committee matter, supra, Muller JA found that no need to
    express any opinion on the merits and proceeded to say at 799D:

    
    

‘In
a case such as the present, where there has been a flagrant breach of
the Rules of this Court in more than one respect, and where in
addition there is no acceptable explanation for some periods of delay
and, indeed, in respect of other periods of delay, no explanation at
all, the application should, in my opinion, not be granted whatever
the prospects of success may be.’

And at 799H:

‘In
the present case the breaches of the Rules were of such a nature, and
the explanation offered in many respects so unacceptable or wanting
that,
even if virtually all the blame can be attributed to the applicants'
attorneys, condonation
ought
not, in my view, to be granted.’

I take a similar view of the breaches
and explanations in the present case.

18. 
    Mr Rosenberg SC who appeared on
    behalf of the appellant could not offer any explanation of the
    breaches such as could affect my view of the matter; he accordingly
    focused most of his argument both in his written heads of argument
    and his oral submissions before us on the prospects of success. In
    the circumstances there is no need to express any opinion thereon.

    
    

19. 
    For these reasons I make the
    following order:

    
    

The application for condonation of
various breaches of the rules of this Court is dismissed with costs,
including the costs of one instructing counsel and two instructed
counsel and the appeal is accordingly struck from the roll.

________________________

MTAMBANENGWE AJA

_________________________

MAINGA JA

_________________________

STRYDOM AJA

APPEARANCES

APPELLANT: Mr S P Rosenberg SC
Instructed by Kirsten & Co Inc

1^ST RESPONDENT: Mr R D
Cohrssen

(with him Mr D Obbes)

Instructed by Metcalfe Attorneys

2^nd& 4^th
RESPONDENTS: Mr C Mostert

Instructed by Koep & Partners