Court name
Supreme Court
Case number
SA 6 of 2009

Ondjava Construction CC and Others v H.A.W. Retailers t/a Ark Trading (SA 6 of 2009) [2010] NASC 5 (08 March 2010);

Media neutral citation
[2010] NASC 5



CASE NO. SA 6/2009


In the matter between:







Coram: MARITZ,

Heard on: 2010/03/05

Delivered on: 2010/03/08



MARITZ, J.A.: [1] Subject
to the provisions of s 18(5) of the High Court Act, 1990
and rule 4(12) of the Supreme Court Rules
rule 8 of the Supreme Court Rules (the “Rules”) defines
the circumstances under which and the time within which an appellant
must find and furnish security for the respondent’s costs of
appeal: Sub-rule (2) provides that, if the execution of a judgment is
suspended pending an appeal to this Court, the appellant shall,
before lodging with the registrar copies of the record, enter into
good and sufficient security for the respondent’s costs of
appeal unless the respondent waives the right to security or the
court appealed from, on good cause is shown, releases the appellant
wholly or partially from that obligation. Sub rule (3) obliges an
appellant to inform the registrar in writing at the time when copies
of the record of appeal are lodged whether (s)he has entered into
security or has been released from that obligation either by virtue
of a waiver or by the court appealed from.

  1. In addition, the sub-rule also contains a deeming
    provision which seeks to inform litigants about the consequences of
    non-compliance with its provisions: should an appellant fail to so
    inform the registrar, it would be deemed a failure to lodge the
    record of appeal in compliance with the requirements of rule 5 (5).
    As noted in numerous judgments dealing with provisions in other
    jurisdictions worded similarly to rule 5(5), although they may not
    specifically so state, their language implies that an appeal lapses
    upon non-compliance with their provisions.
    This, in essence, is also the construction given by this Court to
    the sub-rule.
    The effects thereof are that the appeal is deemed to be discontinued
    and that it may only be revived upon the appellant applying for –
    and the Court granting – condonation for the non-compliance
    and reinstatement of the appeal
    that the judgment of the High Court, suspended both under the
    provisions of the Rules
    and at common law
    by the appeal may be carried into execution
    unless otherwise ordered upon a substantive application and, if so
    minded, a respondent who has given notice of a cross-appeal, must
    notify the registrar of his or her intention to prosecute it and
    thereupon assume the duties of an appellant in the proceedings,
    to mention a few.

  1. The appellants, who appealed against a judgment
    of the High Court dismissing their application for rescission of a
    default judgment in the amount of N$585 094.99, interest and costs
    granted in favour of the respondent, failed to comply with the
    requirements of rules 5(5) and 8(3). Although they lodged the record
    of appeal with the registrar of the Court timeously, they failed to
    deliver copies thereof to the respondent - as they should have done
    in terms of rule 5(5). In addition, knowing full-well that the
    respondent demanded security in the amount of N$60 000.00, they
    failed to inform the registrar at the time they lodged the record
    whether they had entered into security with it. Their remissness
    caused the respondent to launch an application on notice of motion
    seeking dismissal of the appeal with costs. This application, filed
    some nine months ago, prompted the appellants to provide the
    respondent with copies of the record of appeal and to seek
    determination by the registrar of the security to be entered into.
    Notwithstanding the security having been fixed in the amount of N$50
    000.00, they failed to find it. These failures notwithstanding, they
    boldly sought a date for the hearing of the appeal through the
    offices of their legal representatives. Given the application to
    dismiss the appeal and the fact that there was also a cross-appeal
    by the respondent, the matter was set down for hearing on Friday, 5
    March 2010, and the litigants were informed accordingly by the

  1. To make matters worse, the record of appeal was
    incomplete because it contained no reference to the order or
    proceedings which was the subject matter of the cross-appeal and, in
    addition, the appellants' counsel failed to file heads of argument
    as prescribed by rule 11(1). In the absence of an application for
    condonation and reinstatement of the appeal and the significant
    extent in which the appellant, in particular, had failed to comply
    with the rules, the Court caused the registrar to write a letter to
    the litigants' legal practitioners of record notifying them that, in
    addition to any argument which they might advance on behalf of their
    clients, they would also be required to address the question whether
    the appeal and cross-appeal should not be struck off for want of
    compliance with the rules. Shortly after receipt of this notice, the
    appellants' legal practitioners withdrew as their counsel of record
    and, when the matter was called before us, the second appellant
    appeared in person. He also claimed that he was authorised by the
    first and third appellants to appear on their behalf. He explained
    to the Court from the bar that the appellants had found some funds
    to pay their legal practitioners and that, relying upon the kind
    offices of a friend, they would be able to pay the balance shortly.
    He thereupon moved an application for a postponement of the appeal.
    The application was opposed by Mr Grobler, appearing on behalf of
    the respondent, who, in turn, pressed the respondent’s
    application for dismissal of the appeal.

  1. The litigants on both sides, I regret to note,
    have not shown any regard for the consequences which attach to their
    disregard of the rules relating to appeals. Having failed to find
    security and to notify the registrar accordingly when the appellants
    lodged the record of appeal and having omitted to deliver copies of
    the record of appeal to the respondent in breach of rules 8(3) and
    5(5), the appeal lapsed. Therefore, the respondent was at liberty to
    execute the default judgment he had obtained against them. He had no
    need to bring an application for an order that the appeal be
    dismissed with costs. As it is, in the absence of an application –
    and ultimately, the granting of an order - for condonation and
    reinstatement of the appeal, there was no longer an appeal which
    could be dismissed as prayed for by the respondent - just as there
    was no longer an appeal pending which the appellants could set down
    for hearing. Once the appellants realised that they were in breach
    of the Rules and were unable to obtain the respondent’s
    consent to an extension of the periods within which to comply with
    they should have brought an application for condonation and
    reinstatement without delay
    and requested that the application (not the appeal) be set down for
    hearing in due course. Upon hearing and granting the application for
    condonation and reinstatement of the appeal, the Court would have
    been at liberty to consider their argument on the prospects of
    success in the appeal (advanced in support of the application for
    condonation) as argument on the merits of the appeal and decide the
    appeal accordingly. This, in essence is also the approach adopted by
    the South African Supreme Court of Appeal on similar rules in an
    appeal which emanated from this jurisdiction in the matter of
    Moraliswani v Mamili:12

points call for comment. Mr Ruppel expresses an understanding that
the petition would be heard and determined 'simultaneously with the
appeal itself'. This is a misconception. The true position is that a
date for the hearing of an appeal cannot be fixed until Rule 6 has
been complied with or condonation for non-compliance granted (Rules
7.1 and 13). Indeed there is strong authority for the proposition
that failure to comply with Rule 6 causes an appeal to lapse, and
that condonation by this Court is needed to revive it. (See
v Winter; Bowker v Winter

1942 AD 25;
v Dippenaar

1943 AD 190 at 192; and
Plant Hire (Pty) Ltd v Hills and Others

1976 (2) SA 697 (D) at 699C - 700A. See also
Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd

1981 (1) SA 1040 (A) at 1049B - C; and
v Adonis

1982 (4) SA 901 (A) at 907F - G dealing with the related subject of
an appellant's failure to file the record in time.)

In the
absence of a petition for condonation there was accordingly nothing
for this Court to consider and, in particular, no appeal could be
heard until condonation had been granted. This, incidentally, was the
reason why the matter was struck from the roll on 20 February 1987.
Had there been an appeal before the Court on 20 February 1987, the
usual course would have been to dismiss it for non-prosecution in
terms of Rule 7(2) and this course might well have been followed.

Mr Ruppel's
understanding was therefore erroneous. There was no way in which the
petition for condonation could be heard simultaneously with the
appeal itself. At most the parties' arguments on the petition (and,
in particular, their contentions on the petitioner's prospects of
success) could have been treated as constituting also their arguments
on appeal if condonation were to be granted. That, however, is
another matter, and the possibility that this course might be
followed did not afford any reason for supposing that the submission
of a petition for condonation was not a matter of urgency.”

  1. The ratio in
    case also explains why it will not be proper to dismiss the first
    and third appellants’ appeal as a result of their failure to
    appear and prosecute their appeal in person or by counsel as is
    required by rule 10(2) - it being clear that the second respondent,
    a layperson in law, has neither actual nor legal authority to appear
    on their behalf.
    It also underscores why the respondent’s application for
    dismissal of the appeal with costs and the second appellant's
    application for postponement of the appeal are misconceived and fall
    to be dismissed: the appeal having lapsed, there is no appeal
    currently before the Court which can either be dismissed or
    postponed. I hasten to add, that even if it would have been
    competent for the Court to consider the application for postponement
    of the “appeal”, I would have been disinclined to allow
    it, given the history of the appellants' frequent disregard of the
    Rules of this Court and those of the High Court as well as the
    absence of an explanation on affidavit showing good cause why the
    appellants have failed to comply with the Rules; why they have
    failed to timeously bring an application for condonation and
    reinstatement of the appeal; why they have not taken the necessary
    action to ensure that they would be ready to proceed with the appeal
    on the date of hearing; why they have not taken steps during the
    preceding year to place their legal representatives in funds and why
    they have not offered to find and provide security to the
    respondent. Moreover, the assurances of the second appellant from
    the bar notwithstanding, it is does not appear that there is any
    measure of certainty that the person, on whose goodwill they rely to
    provide the balance of the funds required to prosecute the appeal,
    will be forthcoming. The person has not been identified; there is no
    affidavit from him confirming his commitment and ability to assist
    the appellants and, if so, on which conditions it will be done. One
    may have sympathy for the appellants' apparent difficulties to place
    and keep their legal representatives in funds, but, as Holmes JA
    “Litigation is a serious matter and, once having put a hand to
    the plough, the applicant should have made arrangements to see the
    matter through.” If indigent, there were a number of options
    available to them. The requirement of security is dispensed with
    both in pauper-proceedings
    and in instances where legal aid is rendered by or under any law,
    unless the Court directs otherwise. In addition, if they had good
    cause, an application could also have been made in the High Court
    within 15 days after delivery of the appellants' notice of appeal to
    release the appellants wholly or partially from the obligation to
    provide security.
    The appellants did not pursue any of these options and one must
    infer that they have not done so either because they did not qualify
    or had no need to do so. An appellant cannot simply move an appeal
    forward at a speed which meets his or her convenience.
    After all, the respondent has an interest in the finality of the
    judgment obtained. So does the Court in avoiding an unnecessary
    delay in the administration of justice.

  1. On the view I take, there is also no cross-appeal
    before us. The failure of the appellants to inform the registrar in
    writing that they have entered into security in compliance with rule
    8(3), as pointed out earlier in the judgment, is deemed to be a
    failure to file the record of appeal in compliance with the
    provisions of rule 5(5). Such failure is again deemed by rule
    5(6)(b) to constitute a withdrawal of the appeal. Hence, the
    respondent, having noted a cross-appeal, was required by rule
    5(6)(a) to notify the registrar in writing that it was of the
    intention to prosecute the cross-appeal (if so minded or advised).
    Thereupon the respondent would have been deemed to be the appellant
    for purposes of rule 5(5) and, amongst others, would have had the
    duty to see to it that the record of appeal would be in order for
    consideration of the cross-appeal. There is no indication that the
    respondent has notified the registrar of its intention to pursue a
    cross-appeal. In the circumstances, it must be deemed that the
    cross-appeal was discontinued and, for that reason, lapsed.
    Moreover, the record is not in order: the judgment, which is the
    subject matter of the cross-appeal, is not even part of it.

  1. In the result, both the appeal and cross-appeal
    have lapsed. As a matter of formality they fall to be "posthumously"
    struck off the roll. Costs should follow the result. Inasmuch as the
    appellants may in future seek to apply for condonation and
    reinstatement of the appeal, the Court must mark its displeasure
    with the disregard which they have shown for the Rules of Court and
    the litany of instances cited by the respondent where they had also
    done so in the Court
    a quo.
    Therefore, I propose that the set down of any application for
    condonation and reinstatement must be conditional on the finding of
    security and payment of the respondent’s costs occasioned by
    striking off the appeal.

  1. In the premises, the following order is made:

1. The second appellant’s application for
postponement of the appeal is dismissed with costs.

2. The respondent's application for dismissal of
the appeal is dismissed with costs.

3 The appeal is struck off the roll with costs.

4. The cross-appeal is struck off the roll with

5. In the event that the appellants, or the one or
other of them, apply for condonation and reinstatement of the appeal,
it is directed that such application may not be set down for hearing
unless appellants have paid the respondent’s taxed costs
occasioned by the striking off of the appeal within 3 months of
demand (such costs to be taxed within 3 months of the date of this
order) and the appellants (or the one or other of them seeking
condonation and reinstatement) has not entered into good and
sufficient security for the respondent’s costs of appeal within
six months of the date of this order.


I concur.



I concur.







The subsection confers a discretion on the High Court, when granting
leave to appeal to the Supreme Court in matters contemplated by
section 18(2)(b) of the High Court Act, to order the appellant to
find security for costs of the appeal in such amount as the its
registrar may determine, and may fix the time within which the
security is to be found. The obligation to find security and the
time period within which it must be done as prescribed by Rule 8(2)
and (3) are irreconcilable with the discretionary powers vested by s
18(5) in the High Court to decide whether or not security should be
found in appeals contemplated by s 18(2)(b) and, if so, when it is
to be furnished. Rule 8(2) and (3), being subordinate, may not
trench upon s. 18(5) of the High Court Act and, therefore, their
application is limited by and they must be read subject to the
subsection. Compare Rogers & Hart (Pty) Ltd v
Parkgebou-Beleggings & Wynkelders Bpk,
1956 (3) SA 329 (A),
Blou v Lampert and Chipkin NNO and Others, 1973 (1) SA 1 (A)
at 7G - H and Klipriviersoog Properties (Edms) Bpk v
, 1987 (2) SA 117 (A) at 120B-C on
the similarly worded provisions of s 21(4) of the Supreme Court
Act, 1959
(RSA) and that of Rule 6(2) of the then Appellate
Division Rules in that jurisdiction.

It dispenses with the requirement of security when leave has been
obtained to prosecute
an appeal in forma pauperis.

C.f. for example, Vivier
v Winter; Bowkett v Winter,
1942 AD 25
at 26;
Bezuidenhout v Dippenaar,
1943 AD 190 at 192;
United Plant Hire
(Pty) Ltd v Hills and Others,
1976 (2)
SA 697 (D) at 699H and
Moraliswani v
1989 (4) SA 1 (A) at 8B - D.

In Channel Life Namibia (Pty) Ltd v Gudrun
, unreported judgment of this
Court in Case No. SA22/2007 dated 15/08/2008, par [39].

Ibid. See also Moraliswani v Mamili,
at 8B-D;
Waikiwi Shipping Co Ltd v Thomas E Barlow & Sons (Natal) Ltd,
1981 (1) SA 1040 (A) at 1049B - C
and S v
1982 (4) SA 901 (A) at 907F –

Rule 49(11) of the High Court Rules.

See, for example: Hollis v Chase, 8 S.C. 3 at 5; Reid v
, 1938 AD 511 at 513 and South Cape Corporation (Pty)
Ltd v Engineering Management Services (Pty) Ltd,
1977 (3) SA 534
(A) at 542E, 544G - H and 545A.

Compare: Sabena Belgian World Airlines v Ver Elst and Another,
1980 (2) SA 238 (W); Herf v Germani, 1978 (1) SA 440 (T) at

Rule 5(6)(a)

A salutary practice commended by Holmes JA in United Plant Hire
(Pty) Ltd v Hills,
1976 (1) SA 717 (A) at 721C-D before an
application for condonation need be made. See also: AA. Mutual
Insurance Association Ltd. v. Van Jaarsveld and Another
, 1974
(4) SA 729 (AD) at p. 731D referred to by him. If a respondent were
to withhold consent unreasonably, he or she may be at risk of an
adverse cost order in the condonation application (See: Madzunye
and Another v Road Accident Fund
2007 (1) SA 165 (SCA)
par [15].

Compare e.g.: Rennie
v Kamby Farms (Pty) Ltd,
1989 (2) SA
124 (A) at 129G;
Ferreira v Ntshingila,
1990 (4) SA 271 (A) at 281D-E and the authorities cited therein.

Supra at 8B-G and subsequently reconfirmed in
Darries v Sheriff, Magistrate's Court,
Wynberg and Another
, 1998 (3) SA 34
(SCA) at 44G-H.

Compare e.g. s.21(1) of the Legal Practitioners
Act, 1995

In United Plant Hire (Pty) Ltd v Hills,
, at 721E-F

Rule 4(8).

Rule 8(6).

Rule 8(2)(b).

Yunnan Engineering CC and Another v Chater and Others, 2006
(5) SA 571 (T) at 580C.

See: Napier v Tsaperas, 1995 (2) SA 665 (A) at 670C;
Federated Employers Fire & General Insurance Co Ltd and
Another v McKenzie,
1969 (3) SA 360 (A) at 362G and Blumenthal
and Another v Thomson NO and Another,
1994 (2) SA 118 (A) at