Eksteen v First National Bank (SA 79/2022) [2023] NASC 10 (1 March 2023)

NOT REPORTABLE

CASE NO: SA 79/2022

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

STUART GARCIA EKSTEEN Appellant

and

FIRST NATIONAL BANK OF NAMIBIA LIMITED Respondent

Coram: DAMASEB DCJ, MAINGA JA and HOFF JA

Heard: 1 March 2023

Delivered: 1 March 2023

Reasons released: 14 March 2023

Summary: The High Court on 8 April 2022 entered judgment against the appellants. Unsatisfied with the order, the appellants filed their notice of appeal on 23 September 2022.

The notice of appeal was filed outside the time period as prescribed by the Supreme Court Rules. The appellants filed an application for condonation for the late filing of their appeal record and failure to furnish security for costs. Reinstatement of the appeal was not sought.

The purported application for condonation is not accompanied by a record and does not deal with the prospects of success. The appellants’ explanation in support of the ‘condonation application’ is that they are lay persons and that it was difficult for them to comply with the rules on time. Furthermore, the appeal remains lapsed as no effort has been made to cure any of the non-compliances for which condonation is sought.

Held that in view of the serial non-compliances apparent on the record. The matter was struck from the roll, no order as to costs.

____________________________________________________________________

APPEAL REASONS

____________________________________________________________________

DAMASEB DCJ (MAINGA JA and HOFF JA concurring):

[1] On 1 March 2023, we gave an order in this matter in open court, striking the appeal from the roll, with costs and reasons to follow in due course. We have decided to give reasons for the order because the circumstances relating to this appeal are now all too common.

[2] It is settled jurisprudence of this Court that an appeal to it from a judgment and order of the High Court, is deemed to have lapsed, when:

1. The notice of appeal is not lodged within 21 days of the judgment or order appealed against (Rule 7(1));

2. The record is not lodged within the stipulated time of three months from the date of judgment or order appealed against (Rule 8(2)); or

3. The appellant failed to furnish security (Rule 14(2)).

[3] All references to rules are to the Rules of the Supreme Court.

[4] In those circumstances, the suspension of any judgment or order of the court appealed from is considered lifted and the appeal is deemed to have been withdrawn¹.

[5] The present appeal falls foul of all these prescripts. On 8 April 2022 judgment was granted in terms of rule 108 of the Rules of the High Court, to cause certain Erf No. 1423, Pionierspark, Extension No.1, situated in the Municipality of Windhoek, Registration Division "K", Khomas Region, measuring 1374 (one three seven four) Square Meters, held by Deed of Transfer No T 4690/2017 specially executable, with costs.

[6] In the notice of appeal the appellant states that judgment was granted by the High Court on 8 April 2022. Therefore, if he wished to appeal against that order, he should have filed a notice of appeal on 13 May 2022 and would have complied with rule 7(3)(c)(ii).² The notice of appeal was only filed on 23 September 2022 and it did not comply with rule 7(3)(c)(ii).

[7] To the above transgressions are to be added the following non-compliances: The record was not lodged and no security was furnished.

[8] What is before us now is an inept application for condonation which seeks the following relief:

‘1. Condoning the Appellant' non-compliance with Rule 7(1) of the Rules of this Honourable Court with regard to the time period prescribed therein for lodging of the notice of appeal against the entire proceedings in the High Court under Case NO: HC-MD-CIV-ACT-CON-2019/05452, in terms of Supreme Court Rules of 15 November 2017;

2. Condoning the Appellants' non-compliance with Rule 8(1) of the Rules of this Honourable Court with regard to the time period prescribed therein for lodging of the copies of the record of the entire proceedings in the High Court under Case No: HC-MD-CIV-ACT-CON-2019/05452, in terms of Supreme Court Rules of 15 November 2017;

3. Condoning the Appellants' non-compliance with Rule 14(1) of the Rules of this Honourable Court with regard to the time period prescribed therein for lodging of the security of costs of the entire proceedings in the High Court under Case No:HC-MD-CIV-ACT-CON-2019/05452, in terms of Supreme Court Rules of 15 November 2017;

4. Ordering the Respondent to pay the costs in disbursements of this Application, only in the event of it opposing this Application.’

[9] The condonation application is inept because to date no effort has been made to cure any of the non-compliances for which condonation is sought. In other words, the appeal remains lapsed on any of the bases that I have set out previously.

[10] As I have already stated, the purported application for condonation is not accompanied by a record and – unsurprisingly – does not deal with the prospects of success. The appellant’s explanation in support of the ‘condonation application’ is that he is a lay person and that it was difficult for him to comply with the rules on time.

[11] Because of the absence of a record we are not in a position to ourselves assess – given that the appellant is unrepresented - whether the proceedings a quo are tainted by any irregularity or that the order being impugned suffers from any legally cognizable defect.

[12] When the matter was called on 1 March 2023, neither the appellant nor the respondent appeared. Because of the respondent’s absence we are none the wiser what its attitude is as regards costs. We could therefore not make any order as to costs.

[13] We were satisfied that striking the matter was the only competent order in view of the serial non-compliances apparent on the record.

__________________

DAMASEB DCJ

__________________

MAINGA JA

__________________

HOFF JA

APPEARANCES

APPELLANT:	No appearance
RESPONDENT:	No appearance