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  • IN THE HIGH COURT OF SOUTH AFRICA /ES

    (GAUTENG DIVISION, PRETORIA)

    DELETE WHICHEVER IS NOT APPLICABLE

    (1) REPORTABLE: YES / NO

    (2) OF INTEREST TO OTHER JUDGES: YES / NO

    (3) REVISED

    DATE SIGNATURE

    CASE NO: A637/2013

    CASE NO: 16173/2012

    DATE: 14/7/2015

    IN THE MATTER BETWEEN

    THE BODY CORPORATE OF THE FALCONS APPELLANT

    AND

    MARTINUS PETRUS RADEMAN 1ST RESPONDENT

    HOFFIE HOFFMEYER 2ND RESPONDENT

    JOHANNA MARIA PISTORIUS 3RD RESPONDENT

    LENA ERSKINE 4TH RESPONDENT

    JACQUES HODSDON 5TH RESPONDENT

    JUDGMENT

    PRINSLOO, J

  • 2

    [1] This is an appeal against a judgment by this court, dated 5 December 2012, with

    Molefe, AJ (as she then was) sitting as the court of first instance.

    [2] On 12 June 2013, the learned Judge gave leave to appeal to the Full Court of this

    Division. This is the appeal which came before us.

    [3] In the hearing a quo, the appellant was the unsuccessful applicant, with the

    respondents successfully resisting the application.

    [4] The learned Judge ordered that the costs of the application for leave to appeal would

    be costs in the appeal.

    [5] Before us, Mr Louw SC appeared for the appellant, and Mr Schabort appeared for the

    respondents.

    Condonation application: the late filing of the appellant's Notice of Appeal

    [6] According to the calculations of the appellant's attorney of record, the Notice of

    Appeal was filed twenty nine days late. It had to be filed within twenty days from

    12 June 2013 when leave to appeal was granted.

    [7] Already in September 2013, the appellant, having unsuccessfully tried to persuade the

    respondents' attorney to condone the late filing of the document, filed a substantive

    application for condonation. The application was supported by an affidavit deposed to

    by the appellant's attorney of record.

  • 3

    [8] Before us, the application did not receive particular attention, and counsel were

    allowed to address us on the merits. However, the application was not formally

    abandoned, so that it remains necessary to pronounce on the fate thereof.

    [9] The sole cause of the late filing of the appellant's Notice of Appeal, was a negligent

    oversight on the part of the appellant's attorney, which oversight he readily admitted

    when deposing to the supporting affidavit.

    In broad summary, the position is as follows: the attorney got married in March 2013,

    and organised a belated honeymoon with his new bride in Cuba for the period 7 to

    21 June 2013. Leave to appeal was therefore granted during the absence of the

    attorney. He got back to office on 21 June 2013, confronted by an enormous amount

    of work. In his haste to reduce the backlog of work, he lost sight of the fact that the

    Notice of Appeal had to be filed within twenty days from 12 June 2013.

    On 16 August 2013, the file was brought to him for his attention. Quite properly, the

    attorney admits that he was under the incorrect impression that the order granting

    leave to appeal was sufficient and that the application would proceed to the appeal

    stage without a further formal notice. Afterwards he consulted the rule and realised

    his mistake. In his haste, he, initially, filed an incorrectly worded document with the

    title "Application for a Trial Date" and not "Notice of Appeal". He corrected the error

    on 22 August by filing a correctly worded document. He apologised for the oversight,

    which could not be laid at the door of his client.

  • 4

    [10] As it turned out, there was no real inconvenience on the part of anybody and,

    certainly, no prejudice in the true sense of the word. The appeal was only heard

    almost two years after the filing of the Notice of Appeal.

    [11] In the notice of motion of the substantive application, costs were also tendered to the

    respondents on the unopposed scale.

    [12] The condonation application was opposed. An opposing affidavit was filed and, for

    good measure, the respondents also filed a notice in terms of rule 30(2)(b) alleging an

    irregular proceeding on the part of the appellant for filing the Notice of Appeal out of

    time (it was due on 10 July 2013), and calling on the appellant to remove the cause of

    complaint by withdrawing the Notice of Appeal. I will treat the rule 30 notice as part

    of the condonation application, and the opposition thereto, for purposes of deciding

    the application and the issue of costs.

    [13] Because of the view I take of the matter, I deem it unnecessary to deal with all the

    arguments raised by the respondents in opposition to the condonation application.

    It must be recorded, however, that one of the grounds of opposition is that the

    prospects of success of the appeal is one of the main considerations when the

    condonation application has to be decided, and if the prospects are considered to be

    poor, a court should be slow to grant condonation.

    [14] In Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa,

    5th edition, volume 2, the following is said at page 1227:

  • 5

    "It has already been observed that a failure by a party to comply properly or

    timeously with the rules governing appeals may in its discretion be condoned

    by the Court of Appeal. Particular provision on the point is made by statute or

    rules of court in the case of appeals from the magistrates' courts, appeals to the

    full court of a provincial division and appeals to the Supreme Court of Appeal,

    but the court has in any event inherent jurisdiction to grant relief, even in the

    absence of any such provision.

    In Suidwes-Afrikaanse Munisipale Personeel Vereniging v Minister of Labour

    (the reference is 1978 1 SA 1027 (SWA) at 1038B-C) Hart AJP held that the

    principle has now been firmly established that, in all instances of time

    limitation, whether statutory or in terms of the rules of court, the Supreme

    Court had an inherent right to grant condonation when principles of justice and

    fair play demand it to avoid hardship and when the reasons for non-compliance

    with time limits have been explained to the satisfaction of the court."

    (I do not quote all the references from the footnotes, for the sake of brevity.)

    In dealing with the requirement that prospects of success on the merits ought to be

    shown for purposes of obtaining condonation, the learned authors say the following on

    page 1233:

    "The court will not, for instance, require an applicant to show a prospect of

    success on the merits where the failure to comply with the rules is due entirely

    to circumstances beyond his control, for example the illness of the magistrate."

  • 6

    In my view, the same principle applies in the present matter. Although the learned

    authors do point out, on page 1233, that courts will be slow to grant condonation

    where the prospects are considered to be very poor, they also say the following on

    page 1234:

    "A reasonable prospect of success on appeal is naturally an important

    consideration relevant to the granting of condonation, but it is not necessarily

    decisive in every case. Standing alone, it cannot in itself be conclusive."

    (Reference to authorities listed in footnotes is again omitted.)

    [15] In all these circumstances, and despite my negative view of the merits of the appeal, as

    will appear later in this judgment, and where we were fully addressed on the merits of

    the case during the hearing, I have come to the conclusion that this will be an

    appropriate case for granting the condonation. I am not persuaded that the opposition

    to the application was unreasonable in this particular case. Consequently, I have come

    to the conclusion that justice will best be served by ordering the costs, on the opposed

    scale, flowing from the condonation application, to be costs in the appeal.

    [16] What remains, is for me to order, as I do, that the condonation is granted.

    The background of the case, and a brief overview of the issues between the parties

    [17] The appellant, as cited, purports to be the "Body Corporate" of a so-called "sectional

    titles development scheme" which was created, and is governed, in terms of the

    provisions of the Sectional Titles Act no 95 of 1986 ("the Act").

    [18] The name of the development scheme, in this case, is "the Falcons".

  • 7

    The Falcons consists of 79 individual sectional title units and the development is

    situated in Pretoria, relatively close to the Union Buildings. In the founding affidavit,

    the Falcons is described as "an upmarket" development with the individual sectional

    title units being "considerably more valuable than the average sectional title unit in

    South Africa".

    [19] In terms of the provisions of section 35 of the Act, a development scheme, such as

    The Falcons, sh

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