- The High Court described the 12-month delay as “substantial and inordinate” and said a general reliance on pandemic restrictions without detail was inadequate.
- The court found that admitting a replying affidavit in summary judgment proceedings “is widely regarded as an irregular step” and may amount to a material misdirection.
- Although the reinstatement of a lapsed appeal was granted in the interests of justice, the appellant attorneys were ordered to pay the costs to mark the court’s displeasure.
The High Court in the North West has reinstated a lapsed appeal despite condemning the conduct of Khanyisa Mogale Attorneys, acting for the appellant, as “slapdash” and their explanation for a year-long delay as weak.
The case involved an appeal that lapsed after the appellant’s attorneys failed to file the record and secure a hearing date within the prescribed time limits. The court found that the merits of the case were too strong to ignore, even though Khanyisa Mogale Attorneys failed to provide a satisfactory account for the delay.
Acting Judge AH Petersen, with Judge TJ Maodi concurring, criticised the way the appeal had been handled by Khanyisa Mogale Attorneys but ultimately held that the interests of justice favoured allowing it to proceed in the matter between Khanyisa Mogale Attorneys (appellant) and Mankele Zipporah Mokotedi, acting on behalf of Brian Ridge Moagi (respondent).
“Substantial and inordinate” delay
The appeal arose from a summary judgment granted by the Rustenburg Magistrates’ Court in July 2021. Although Khanyisa Mogale Attorneys noted an appeal, they failed to file the record and secure a hearing date within the prescribed time limits. The appeal lapsed automatically.
It was only about 12 months later that Khanyisa Mogale Attorneys submitted an application for reinstatement of the lapsed appeal, together with a request for condonation for the late filing of the record.
Judge Petersen did not minimise the seriousness of the delay. He described it as “substantial and inordinate” and made clear that a party seeking condonation must provide a full and satisfactory account for the entire period of non-compliance.
The court stated that “a general reliance on ‘pandemic restrictions’ without specific dates and details regarding how those restrictions prevented compliance during specific weeks or months is inadequate.”
The explanation regarding missing files and transcription delays was said to be “vague in parts”, with “significant periods of inactivity” during which the appellant appeared to have waited passively. The court added that if it were to decide the matter solely on the explanation, “the application would likely fail.”
Replying affidavit a “material misdirection”
Despite its criticism, the court turned to the merits and found strong prospects of success on appeal.
The central complaint was that the magistrate admitted a replying affidavit in summary judgment proceedings. Magistrates’ Court Rule 14 permits only two affidavits. It does not allow a replying affidavit.
Judge Petersen held that “the filing of a replying affidavit in summary judgment proceedings is widely regarded as an irregular step.” He went further, stating that if the magistrate relied on new matter in that affidavit to grant summary judgment, “it constitutes a material misdirection.”
The court emphasised that summary judgment is “a drastic remedy that closes the court’s doors to a defendant” and that strict compliance with Rule 14 is required to avoid the constitutional right of access to courts being impinged.
On the papers before it, the High Court found that the summary judgment “appears to have strong prospects of success on appeal.” Refusing reinstatement would have allowed “a potentially legally defective judgment to stand” solely because of procedural noncompliance in the appeal process.
Balancing the weak explanation against the strong merits, the court concluded that “these strong merits outweigh the weak explanation for the twelve-month delay.” In the interests of justice, the reinstatement of a lapsed appeal was granted.
Costs as a warning to practitioners
The court made clear that condonation and reinstatement are indulgences. The respondent was “fully entitled to oppose” the application, given the length of the delay and the gaps in the explanation.
Referring to previous authority criticising poor litigation practice, Judge Petersen said the appellant’s conduct “borders on the ‘slapdash’ behaviour criticised” in higher courts. Although not malicious, it warranted financial consequences.
“The appellant should not be allowed to escape the financial consequences of its delay,” the court held.
The appeal was reinstated, and Khanyisa Mogale Attorneys were directed to set it down for hearing within thirty days.
However, the attorneys were ordered to pay the costs of the reinstatement and condonation application, including the costs of opposition, on Scale C.
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