Kalipi and Telecom Namibia Ltd (SA 80/2014) [2016] NASC 9 (13 December 2016);


Full judgment


CASE NO: SA 80/2014


In the matter between:











Heard: 10 November 2016

Order: 10 November 2016

Delivered: 13 December 2016






  1. After hearing oral argument in this matter, the following order was made on the date of hearing:


‘The appeal is struck from the roll with costs.’


  1. What follows are the reasons for that order.

  2. At the conclusion of a defended action in the High Court concerning a breach of contract, the respondent obtained judgment against the appellant for the sum of N$157 499,27 plus interest and costs on 18 September 2014. The appellant lodged a notice to appeal against this judgment and order eight days late on 21 October 2014. On the same date, the appellant filed a condonation application for this non-compliance with the rules of this court. The relief sought in that condonation application was however not merely confined to the late noting of the appeal, but also sought condonation for ‘any other time periods prescribed (in the rules) in so far as these have not been complied with’. This further prayer is of course inept as condonation would need to be sought for each non-compliance with the rules, requiring a full satisfactory explanation for each non-compliance. The carefree disregard for the rules epitomised in this prayer characterised the conduct of this appeal.


  1. The appeal record was lodged on 23 February 2015, slightly more than two months out of time. Not only was it late, but the record was also poorly put together. Several items were bound out of the proper sequence and considerable material was included which did not form part of a proper appeal record. Instead of the exhibits being indicated and collected in their correct place, full discovery bundles were included prior to the transcribed oral evidence. There was however an indication that some of the documents were also exhibits, with reference to an exhibit number placed upon them.


  1. The respondent’s counsel in her heads of argument also pointed out that no security for the respondent’s costs of appeal had been given on behalf of the appellant. Nor was there a power of attorney of the appellant on the court file.


  1. Even after these further and serious failures to comply with the rules of court were pointed out to the appellant in advance of the hearing, they remained unaddressed on the date of hearing. Equally surprisingly, there was also no additional condonation application for each of these yet further failures to comply with the rules of this court.


  1. Mr Elago, who appeared for the appellant, argued that he should first obtain condonation for the late noting of the appeal before attending to the other non-compliances, because in the absence of that failure being condoned, there was no appeal before the court. Even though a date for the hearing of the appeal had been allocated, it would appear that he considered that these aspects could be subsequently addressed until and unless condonation for the late noting of the appeal were to be granted. Quite when this would occur was not explained. This assumption is entirely erroneous and in direct conflict with the express provisions of the rules.


  1. The peremptory time period for the filing of records of appeal are set with reference to the date of the judgment and order appealed against (and not to noting the appeal). In this type of matter, the record is to be lodged three months from the date of judgment. This is set out in rule 5(5)(b) in unambiguous terms.


  1. The obligation to enter into good and sufficient security for the respondent’s costs of appeal is to be met before lodging copies of the record unless the respondent had waived the right to security or the High Court had released the appellant wholly or partially from that obligation. Neither of these events had occurred. There is a further obligation upon an appellant to inform the registrar in writing that security had been given or, if applicable, that an appellant had been released from that obligation.


  1. Mr Elago conceded that no security had been given and that the record of appeal had been filed late. He correctly did not attempt to argue that the open ended relief sought for future non-compliances could possibly address these non-compliances. Not only was there no condonation application for each of these further non-compliances as I have already said, but there was also no application to reinstate the appeal. This would be required as a consequence of not filing the record timeously, as is provided in rule 5(6)(b). This sub-rule provides that an appeal is deemed to be withdrawn when a record of the appeal has not been lodged within the stipulated time. It would thus have lapsed. In such an instance, there is no appeal before this court. An application for the reinstatement of the appeal would be required to address this in addition to applying condonation for each of the manifold non-compliances with the rules relating to almost every step to be taken to prosecute the appeal.


  1. This is yet another instance – and an extreme one at that – where there has been flagrant non-compliance with the rules of this court, not only to the prejudice of the litigants but also hampering the functioning of this court.


  1. Given the fact that the appeal was deemed to be withdrawn and had thus lapsed, there was no appeal before this court. Its reinstatement was not sought. It followed that the appeal was to be struck with costs. Hence our order to that effect on the day of the hearing.




















P S Elago


Of Tjombe-Elago Inc



S Miller

Of Shikongo Law Chambers