Court name
Supreme Court
Case name
Shilongo v Church Council of the Evangelical Lutheran Church in the Republic of Namibia
Media neutral citation
[2013] NASC 13
Judge
Shivute CJ













REPORTABLE







CASE NO.: SA 87/2011










IN
THE SUPREME COURT OF NAMIBIA








In
the matter between
































IMMANUEL
SHILONGO



Applicant











and















CHURCH
COUNCIL OF THE EVANGELICAL LUTHERAN CHURCH IN THE REPUBLIC OF
NAMIBIA








Respondent









Coram:
SHIVUTE CJ, MAINGA JA and MTAMBANENGWE AJA





Heard:
13 June 2013





Delivered:
16 October 2013











RULING ON APPLICATION FOR
CONDONATION










SHIVUTE
CJ (MAINGA JA and MTAMBANENGWE AJA concurring):





Background







  1. The background to this application
    for condonation is that the applicant (as plaintiff) instituted
    action in the High Court against the respondent (as defendant) in
    which he sought damages in the amount of N$300 000 and patrimonial
    loss in the amount ofN$150 000 for the alleged defamatory statements
    made by the respondent in a circular published to the congregations
    of the Evangelical Lutheran Church in the Republic of Namibia
    (ELCRN). The applicant’s claims were met with a special plea
    by the respondent, namely lack of standing to sue or to be sued in
    its own name.









  1. The parties agreed that the special
    plea should be decided first before the merits of the case are
    considered. The matter came before Unengu AJ who in his judgment
    delivered on 17 October 2011, upheld the special plea and dismissed
    the applicant’s claim with costs. He held that the respondent
    was only a structure of the ELCRN. As such, it did not have the
    legal capacity to sue or to be sued in its own name and that rule
    14(2) of the Rules of the High Court upon which the applicant had
    relied for citing the respondent was not of application, because the
    respondent was not an association as defined by rule 14(1).









  1. Evidently aggrieved by the decision
    of the High Court, the applicant appealed to this Court against the
    judgment of that court. Although the Notice of Appeal was filed on
    time, the applicant failed to file the record of proceedings within
    the period set out in rule 5(5)(b)of the Rules of the Supreme
    Court;failed to enter into good and sufficient security for the
    respondent's costs of the appeal before the record was lodged with
    the registrar as prescribed under rule 8(2);failed to inform the
    registrar that he had entered into good and satisfactory security as
    required by rule 8(3) of the Rules of this Court;neglected to seek
    an extension of the time within which to lodge the record of the
    proceedings as required by rule 5(6)(b)of the Rules of the
    Supreme Court, and finally failed to file his heads of argument not
    later than 21 days before the hearing as required by rule 11(1).









  1. Consequently, applicant filed an
    application for condonation,but only for the non-compliance with
    rule 5(5) and rule 11(1). No application for condonation for the
    failure to comply with the provisions of the remaining
    rulesmentioned above has been filed. The applicant has not applied
    for the reinstatement of the appeal either. Counsel for the
    applicant raised a curious point that it was not necessary to apply
    for the reinstatement of the appeal. This argument will be dealt
    with in detail below.








Incidences of applications for
condonation in appeals in the Supreme Court




  1. Before I deal with the applications
    for condononation, I would like,
    once
    again, to express this Court's grave concern about the alarming wave
    of condonation applications for non-compliance with the rules of
    this Court in appeal matters. Virtually every appeal that I was
    involved in during the recent session of the Court was preceded by
    an application for condonation for the failure to comply with one or
    other rule of the Rules of Court. In all those appeal matters,
    valuable time and resources were spent on arguing preliminary issues
    relating to condonation instead of dealing with the merits of the
    appeals. In spite of observations in the past that the Court views
    the disregard of the rules in a serious light,
    1the
    situation continues unabated and the attitude of some legal
    practitioners appears to be that it is all well as long as an
    application for condonation will be made. Such attitude is unhelpful
    and is to be deprecated.









  1. As this Court has repeatedly stated,
    an application for condonation is not there for the asking or a mere
    formality nor is it a one-sided exercise. There are other interests
    involved, including the convenience of the court and the
    respondent's interest in the finality of the judgment. It is
    therefore of cardinal importance that practitioners who intend to
    practice at the Supreme Court and who are not familiar with its
    rules take time to study the rules and apply them correctly to turn
    the tide of applications for condonation that is seriously hampering
    the Court's ability to deal with the merits of appeals brought to it
    with attendant expedition. I turn then to consider the two
    applications, starting with the application for the late lodging of
    the record first.








Application for condonation for the
late lodging of the record




  1. It is trite that in an application
    for condonation an applicant must give an explanation for
    non-compliance with the rules. If the non-compliance is time
    related, the explanation must cover the entire period.
    2
    The applicant must also show that the
    appeal enjoys good prospects of success,
    which
    aspect will be considered in the context of the application for
    condonation to the extent that a court is not precluded,by the facts
    of the case, from the consideration of that aspect of the
    application.









  1. As regards the application for
    condonation for the failure to lodge the record on time in this
    matter, it is to be noted that the notice of appeal was filed
    timeously on 14 November 2011.However, the record of appeal was
    filed only on 3 April 2012 together with the bond of security as
    well as an application for condonation for the late filing of the
    record of appeal. In terms of rule 5(5)
    (b)
    of the Rules of the Supreme Court,an
    appellant must lodgewith the registrar the record of proceedings in
    the court appealed fromwithin three months of the date of the
    judgment or order appealed against. If he or she has failed to do so
    within the period prescribed under Rule 5(5), he or she must apply
    to the respondent or his or her legal practitioner for consent to an
    extension of the period within which to lodge the record and must
    give notice to the registrar that he or she has done
    so.
    3Furthermore,
    since the respondent has not waived its right to security nor was
    the applicant released from the obligation to provide security
    before lodging copies of the record, the applicant in this case
    should have entered into good and sufficient security for the
    respondent's costs of the appeal.
    4









  1. Moreover, when copies of the record
    were lodged with the registrar, the applicant should have informed
    the registrar in writing whether he or she had entered into security
    or had been released from such obligation.
    5None
    of these steps was taken by the applicant in this matter. Failure to
    inform the registrar accordingly within the period referred to in
    rule 5(5) is deemed to be failure to lodge the record of appeal in
    compliance with the requirements of that rule.The consequence of
    such failure or neglect is that the appeal lapses, which means that
    the appeal is deemed to be discontinued and may only be revived upon
    the grant of condonation for the non-compliance with the rules and
    the reinstatement of the appeal.
    6









  1. The record of the proceedings was
    filed in this matter more than two and a half months late. As
    previously stated, the condonation application is only in respect of
    the late filing of the record of appeal and the heads of argument,
    but not for the non-compliance with the requirements of other Rules
    of Court detailed above.It is opportune then to consider next the
    explanation for the failure to lodge the record of appeal in the
    prescribed period.









  1. The affidavit explaining the late
    lodging of the record was deposed to by Mr Grobler, counsel who
    argued the matter on behalf of the applicant. The explanation is
    that Mr Grobler requested the then official transcribers, Soho
    Consulting CC,on 14 November 2011 to transcribe the record. It was
    shortly before the festive season. He enquired about progress on 16
    January 2012 and was informed that the tapes were missing and the
    personnel were busy searching for them. He was thereafter informed
    on 7 February 2012 that the missing tapes had been found and that
    the record would be typed within a week. He then informed the
    respondent’s legal practitioners of this development on the
    same day and only then did he enquire from them what the amount of
    security would be. In spite of the undertaking by Soho Consulting CC
    to complete the record within a week, and further reminders in this
    regard, Mr Grobler only received the typed record on 28 March 2012.
    The applicant lodged the record and the bond of security as well as
    an application for condonation on 3 April 2012. This is the sum
    total of the explanation. On the other hand, the transcribers'
    certificate shows that the record was transcribed on 18 February
    2012and proof-read on 22 February 2012. There is no explanation as
    to what happened during the period between 22 February 2012 and 28
    March 2012 when Mr Grobler says he had received the record.









  1. In any event,Mr Van Vuuren, counsel
    for the respondent, is correct in submitting that in the absence of
    a confirmatory affidavit from a person or persons at Soho Consulting
    CC who had discussions with Mr Grobler regarding the preparation of
    the record,what Mr Grobler was allegedly told by such person or
    persons is inadmissible hearsay and as such should be ignored.
    Furthermore, considering that only 31 pages of the record of
    proceedings were typed (the rest of the pages being copies) and the
    certificate indicatedthat the typed portion of record of proceedings
    was ready more than a month before Mr. Grobler said he had received
    it, his explanation for the delay does not satisfy the requirement
    that where non-compliance with the rules is time related, the
    explanation must cover the entire periodand is clearly not
    sufficient.









  1. As regards the provision of security,
    counsel for the applicant argued in effect that the applicant was
    not required to seek condonation for the failure to enter into
    security. Counsel argued that since rule 8(3) read with rule 5(5)
    requires security to be lodged 'when copies of the record are
    lodged', the applicant hadcomplied substantially with the rule as
    the bond of security was filed on the same date the record was
    lodged. This contention cannot be correct. Rule 8(2) provides in
    effect that where the execution of a judgment is suspended pending
    appeal, security should be entered into before the lodging of
    the record unless the right to security has been waived or an
    appellant has been released from providing security. This was
    evidently not done. Rule 8(3) on the other hand impelsthe appellant
    to inform the registrar in writing whether he or she has entered
    into security or has been released from that obligation. The
    applicant has not so informed the registrar either. What he did was
    simply to annex the bond of security to the application for
    condonation for the late lodging of the record.This is not what the
    rule requires. As such, it was evidently not complied with.









  1. Counsel for the applicant further
    submitted that the record was not filed out of time as the three
    months stated in rule 5(5)(b) only commences running once the
    record has been obtained by an appellant.For that reason, counsel
    went on to argue that it was not necessary for the application for
    condonation to be accompanied by an application for the
    reinstatement of the appeal. He proceeded to submit that the
    appellant's obligation to file the record arises only once the
    record has been made available to him or her by the official
    transcribers. The record not having been made available to the
    applicant in this case within three months of the date of judgment
    or order appealed against, the applicant's obligation to file same
    does not arise at all, so counsel argued. Counsel developed the
    argument by contending that an applicant cannot be held responsible
    for something that is impossible and as such his or her failure to
    file the record in those circumstances amounts to necessity. Counsel
    relied for this proposition on a criminal case dealing with the
    defence of necessity.









  1. This argument is perplexing to say
    the least. The rule states clearly from which date the three month
    period commences to run, namely the date of the judgment or order
    appealed against. There is no additional requirement in the rule
    that the three month period starts to run from the date that the
    record has been made available to an appellant. Moreover, Mr
    Grobler's argument begs the question: if counsel genuinely believed
    that the applicant was within the time allowed to lodge the appeal
    record, why was it found necessary to make an application for
    condonation? No coherent answer could be provided when this question
    was put to counsel during arguments. An appellant is not relieved of
    the responsibility of ensuring that the record is complete and has
    been lodged in accordance with the rules of Court just because the
    official transcribers are responsible for compiling it.
    7









  1. An appellant is under an obligation
    to take active part in the compilation of the record so as to ensure
    that the record is complete and is ready to be lodged within the
    time limits imposed by the rules. This responsibility cannot be
    shifted on to official transcribers. The criminal law principle
    invoked by counsel for the applicant is a red herring and is of no
    application at all. As previously observed, the failure to lodge the
    record of appeal in compliance with the requirements of rule 5(5)
    and to inform the registrar of the position of security has the
    consequence that an appeal lapses. It has already been noted that a
    lapsed appeal can be revived only upon a successful application for
    condonation and reinstatement.
    8The
    argument advanced by counsel for the applicant on this point is
    clearly untenable and should be rejected.








Application for condonation for the
late filing of heads of argument




  1. As mentioned before, the applicant
    has also filed a condonation application for the late filing of his
    heads of argument.Counsel for the respondent has indicated that this
    application was no longer opposed. This attitude on the part of the
    respondent is understandable considering that the respondent's heads
    of argument were also filed late and no application for condonation
    has been filed therefor. The applicant seemingly takes no issue with
    the late filing of the respondent's heads of argument. The failure
    to file the heads of argument has been satisfactorily explained on
    behalf of the applicant and in the absence of opposition to it, I
    would accordingly grant condonation therefor.








Conclusion




  1. The applicant in this matter has run
    foul of far too many rules of this Court. He was selective in his
    endeavour to explain the non-compliance with the rules: applying for
    condonation only in respect of the two transgressions of the rules
    while brushing the rest of the transgressions aside.The applicant's
    explanation for non-compliance with the rules of Court in respect of
    the failure to lodge the record of appeal timeously is entirely
    unsatisfactoryas it does not explain the entire period. Over and
    above that, his interpretation of the rules cannot be accepted. Even
    if the condonation application were to succeed, the applicant did
    not apply for the reinstatement of the appeal as he has advanced
    unorthodox submissions that are contrary to settled principles.The
    authorities setting out those principles were usefully summarised in
    the respondent's heads of argument. Indeed, counsel for the
    applicant candidly conceded that he had not read those cases.









  1. Viewed in its entirety, the
    applicant’s counsel handled this case without the requisite
    diligence and displayed a cavalier attitude towards the rules of
    court. The appeal having lapsed, the Court has not been asked to
    reinstate it and should be loathe exercising unsolicited discretion.
    It is therefore my considered view that in the absence of an
    application for the reinstatement of the appeal, coupled with a
    flagrant non-compliance with the rules of Court, it is not necessary
    to deal with the prospects of success even though we have heard
    arguments thereon.I may add though that having heard full arguments
    on the issue, I am not in any eventpersuaded that there are good
    prospects of success on appeal. Counsel for the applicant did not
    even endeavour to address the prospects of success of the appeal in
    the application for condonation for the late lodging of the record.
    It was only after the issue was raised in the answering affidavit
    that the applicant sought, impermissibly, to address the matter in
    the reply. Even then, such attempt was confined to a single
    statement that the applicant's appeal enjoyed good prospects of
    success without disclosing the basis for such a bold assertion. The
    application for condonation for the late filing of the record of
    appeal ought therefore to be refused.








Order




  1. The following order is made:









  1. The application for condonation for
    the late filing of heads of argument is granted.









  1. The application for condonation for
    the late lodging of the record of appeal is refused with costs, such
    costs to include the costs of one instructed and one instructing
    counsel.




















____________________


SHIVUTE
CJ











____________________


MAINGA
JA











____________________


MTAMBANENGWE
AJA

























APPEARANCES















APPELLANT:










RESPONDENT:




Z Grobler



Instructed by Grobler & Co.







A van Vuuren


Instructed
by LorentzAngula Inc.











1For
example, in Channel Life Namibia (Pty) Ltd v Otto 2008 (2) NR
432 (SC) para 48;Erica Beukes v SWABOU, unreported, delivered
on 5 November 2010; Rainier Arangies t/a Auto Tech v Quick Build,
as yet unreported, delivered on 18 June 2013 para 4.




2See,
for example, Namib Plains Farming CC v Valencia Uranium (Pty) Ltd
2011 (2) NR 469 para 24; Swanepoel v Marais
1992 NR 1 (HC).




3Rule
5(6)(b).




4Rule
8(2)




5Rule
8(3)




6Ondjava
Construction CC v HAW Retailers t/a Ark Trading
2010 (1) NR 286
(SC) para 2.




7Channel
Life Namibia (Pty) Ltd v Otto
para 47.




8See
note 6 above.