in the high court of south africa /es (gauteng division ... in the high court of south africa /es...
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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
CASE NO: A637/2013
CASE NO: 16173/2012
IN THE MATTER BETWEEN
THE BODY CORPORATE OF THE FALCONS APPELLANT
MARTINUS PETRUS RADEMAN 1ST RESPONDENT
HOFFIE HOFFMEYER 2ND RESPONDENT
JOHANNA MARIA PISTORIUS 3RD RESPONDENT
LENA ERSKINE 4TH RESPONDENT
JACQUES HODSDON 5TH RESPONDENT
 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.
 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.
 In the hearing a quo, the appellant was the unsuccessful applicant, with the
respondents successfully resisting the application.
 The learned Judge ordered that the costs of the application for leave to appeal would
be costs in the appeal.
 Before us, Mr Louw SC appeared for the appellant, and Mr Schabort appeared for the
Condonation application: the late filing of the appellant's Notice of Appeal
 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.
 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.
 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.
 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.
 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.
 In the notice of motion of the substantive application, costs were also tendered to the
respondents on the unopposed scale.
 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.
 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.
 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:
"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
"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."
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
"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.)
 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.
 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
 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").
 The name of the development scheme, in this case, is "the Falcons".
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
 In terms of the provisions of section 35 of the Act, a development scheme, such as
The Falcons, sh