THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 399/2018
In the matter between:

SAMUEL DEMOCRACY ZWANE N.O.
First Applicant

SAMUEL DEMOCRACY ZWANE
Second Applicant

and

ANDRE PRETORIUS

Respondent

Neutral citation: Samuel Democracy Zwane N.O. v Andre Pretorius
(399/2018) [2019] ZASCA 171(29 November 2019)

Coram: Cachalia, Swain and Mokgohloa JJA
Heard: 21 November 2019

Delivered: 29 November 2019

Summary: Condonation: application for condonation for late filing of
appeal application not granted – no prospects of success - appeal struck
from the roll.

________
ORDER

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On appeal from: Gauteng Division of the High Court, Pretoria (Prinsloo
J sitting as court of first instance):

1 The application for condonation is dismissed with costs.
2 The appeal is struck from the roll.

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JUDGMENT

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Mokgohloa JA (Cachalia and Swain JJA concurring):

[1] This is an application for condonation of the late filing of an appeal.
The first applicant, Samuel Democracy Zwane N.O, is cited herein in his
official capacity as the sole trustee of the Democracy Zwane Family Trust,
the owner of a farm known as Portion 11 farm Uitgevallen 134 IT, Ermelo,
previously owned by the late Ms Lesley Megan Pretorius.  The trust bought
the farm on 6 February 2015 from Mr Pretorius who was the executor to
Ms Pretorius’ estate. It was registered into the trust’s name on 4 May 2015.

[2] The farm was initially advertised to be sold on auction on 29
November 2014. During October 2014, the second applicant representing
the trust, approached Mr Pretorius and informed him that he was interested
in buying the farm. On 23 October 2014, Mr Pretorius and the trust entered
into a sale agreement (the first agreement). The agreement was subject to
the condition that the trust had to obtain a loan of R7.5 million (the
purchase price) within 30 days, failing which the agreement would lapse.
Possession and occupation of the farm was to be given to the applicants on
the date of registration of the bond.

[3] The first sale agreement lapsed because the trust failed to secure a
loan to pay the purchase price as per the agreement. In the meantime, the
auction sale proceeded on 29 November 2014 and the respondent, Mr
Andre Pretorius, only bought 67 head of cattle, farm equipment and other
loose items. The farm itself was not sold because the reserved price could
not be reached.

[4] Soon after the auction, the respondent and Mr Pretorius entered into
an oral agreement in terms of which the respondent would maintain the
farm and the grass until the farm is purchased and transferred to the new
purchaser. In return, the respondent would keep the cattle he bought on
auction on the farm, fertilize, cut the grass and make bales which would
become his property to use as he pleased.

[5] On 4 December 2014, Mr Pretorius and the trust entered into another
sale agreement in terms of which the first agreement was revived. This
agreement lapsed as well for the same reasons that the trust had failed to
obtain the necessary loan.

[6] The respondent continued to maintain the farm as per the oral
agreement he had with Mr Pretorius. During December 2014 he fertilised
the grass. A month later he cut the grass and made 400 bales which were
packed behind the barn on the farm. And again during January 2015, he
fertilized the grass and in March 2015 he cut and made another 292 bales.

[7] On 6 February 2015, a third sale agreement was entered between Mr
Pretorius and the trust on the same terms as the first agreement except for
the purchase price having been reduced to R7.2 million. This time the trust
managed to obtain the loan from the bank and the farm was subsequently
transferred and registered in its name on 4 May 2015.

[8] A day or two after the transfer, the second applicant visited the farm
and allowed the respondent to remove the cattle but refused him to remove
the 692 bales of grass. The respondent instituted an action claiming
ownership of the bales.

[9] The trial proceeded before Prinsloo J in the Gauteng Division of the
High Court, Pretoria. On 24 February 2017, he handed down his judgment
having found in favour of the respondent, and ordered the applicants to
deliver the bales to the respondent. Application for leave to appeal this
judgment was dismissed on 25 April 2017. The applicants applied to this
court for leave to appeal. On 11 June 2018, this court referred the
application for leave to appeal for the hearing of oral argument.

[10] Before considering the merits of the appeal, it is necessary to decide
whether we should condone the failure by the applicants to pursue the
appeal timeously and properly. And if so, whether to reinstate the appeal.

[11] The application for leave to appeal was filed in this court on 19 April
2018. The rules of this court required the record to have been filed on 25
May 2017. The explanation proffered by the second applicant for the delay
of almost eleven months to file the appeal record was an alleged negligence
on the part of his attorneys.  In that regard he states:

‘53.
I did not do nothing in this regard. I instructed attorneys TMN Kgomo &
Associates Incorporated (“TMN Kgomo”) who instructed Adv A P Laka SC to represent
me as far (as I am aware) to draw petition. I accepted the advice of the legal
representatives, especially since Adv A P Laka is a senior counsel.

54.
On 25 July 2017 an application for leave to appeal purporting to be a petition
was served and filed on my behalf petitioning to the High Court in Pretoria instead of
the above Honourable Court. I attach hereto the Filling Notice, together with the
defective Notice of Application for Leave to Appeal collectively as ANNEXURES
“A6”.

55.
I, on advice of TMN Kgomo attorneys and entrusted them and therefore waited
for the appeal to be adjudicated upon. However, nothing happened and I was not
informed on the status of the appeal. I am advised that the procedure adopted is flawed
and my attorney TMN Kgomo should have known better.

56.
Only on 5 February 2018 did I consult my current attorneys of record to attempt
for them to assist me in finalising the already pending petition. I was then informed of
the flawed procedure followed by TMN Kgomo attorneys. My attorney then advised me
that a petition should be launched to the above Honourable Court.’

[12] As regards the delay in filing the application of leave to appeal
between 5 February 2018 and 19 April 2018, the second applicant
explained that it took him time to obtain the relevant documents, such as
transcripts and court orders. He explained further that he had to obtain funds
to pay his new attorneys and once that was secured, his bank made a

mistake by depositing the funds into a wrong account.

[13] It is apparent that there are significant gaps in the second applicant’s
explanation. There is a substantial amount of time unaccounted for. This is
from 25 April 2017 when leave to appeal was refused until 25 July 2017
when his attorney allegedly filed the petition in a wrong court. Again from
25 July 2017 to 5 February 2018 when he became aware that his attorney
had filed a petition in a wrong court. He does not give an explanation of the
steps he took to follow up with his attorney with regards to the progress of
the petition. As stated in Saloojee & another NO v Minister of Community
Development,1
‘There is a limit beyond which a litigant cannot escape the results of his attorney’s lack
of diligence or the insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance of the Rules of this Court. Consideration
ad misericordiam should not be allowed to become an invitation to laxity. . . The
attorney, after all, is the representative whom the litigant has chosen for himself, and
there is little reason why, in regard to condonation of a failure to comply with a Rule of
Court, the litigant should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure are.’

[14] In Darries v Sheriff, Magistrate’s Court, Wynberg & another,2 the
court pointed out that condonation is not a mere formality and will not
necessarily be granted even where the failure to comply with the rules of
court is entirely attributable to a party’s attorney. The court stated:
‘An appellant should whenever he realises that he has not complied with a Rule of Court
apply for condonation as soon as possible. Nor should it simply be assumed that, where
non-compliance was due entirely to the negligent of the appellant’s attorney,
condonation will be granted. In applications of this sort the appellant’s prospects of
success are in general an important though not decisive consideration. When application

1 Saloojee & another NO v Minister of Community Development 1965 (2) SA 135 (A) 141 C-E.
2 Darries v Sheriff, Magistrate’s Court, Wynberg & another 1998 (3) SA 34 (SCA) 40I-41E.

is made for condonation it is advisable that the petition should set forth briefly and
succinctly such essential information as may enable the Court to assess the appellant’s
prospects of success. But appellant’s prospect of success is but one of the factors
relevant to the exercise of the Court’s discretion, unless the cumulative effect of the
other relevant factors in the case is such as to render the application for condonation
obviously unworthy of consideration. Where non-observance of the Rules has been
flagrant and gross an application for condonation should not be granted, whatever the
prospects of success might be.’

[15] In my view, little more need be said. The failure on the part of the
second applicant to comply with the rules of this court has been flagrant
and inexplicable. He did nothing after his application for leave to appeal
was refused by the trial court. He sat back and allowed the respondent to
think that he had abandoned his intention to appeal. And the lack of any
explanation for failing to comply with time limits given by this court on 11
June 2018 when this court referred the application for leave to appeal to the
hearing of oral evidence, is astonishing. Condonation is not to be had
merely for the asking but a full, detailed and accurate account of the causes
of the delay and their effects must be furnished so as to enable the Court to
understand clearly the reasons and to assess the responsibility. It must be
obvious that if the non-compliance is time related then the date, duration
and extent of any obstacle on which reliance is placed must be spelled out3.
The applicants failed to give attention to matters that called for an
explanation. I therefore find it impossible to hold that the delay in bringing
this application has been explained in a manner that is satisfactorily.

[16] The circumstances of this case are such that we may well have been
entitled to refuse the application for condonation without going into the

3 Uitenhagen Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA);
[2003] 4 All SA 37; [2003] ZASCA 76 para 6.

question of prospects of success in the appeal. As pointed out in Tshivhase
Royal Council & another v Tshivhase & another4 that this court ‘has often
said that in cases of flagrant breaches of the Rules, especially where there
is no acceptable explanation thereof, the indulgence of condonation may be
refused whatever the merits of the appeal are; this applies even where the
blame lies solely with the attorney.’ The delay in this matter is so
unreasonable and the explanation offered is unacceptable and wanting that
we may well have been justified in adopting that course, I shall however
briefly deal with the applicants’ prospects of success.

[17] The respondent’s claim is that he had an oral agreement with Mr
Pretorius in terms of which he would maintain the farm, fertilize the grass,
cut it, prepare bales and keep them as his own.  The applicants contended
that the respondent failed to prove his case of ownership of the bales as he
had based his action on being a bona fide possessor rather than him being
the owner of the bales by virtue of the oral agreement. This contention was
based on what the applicants allege was the submission made by the
respondent’s counsel in his opening address. According to the applicants,
the respondent’s counsel disavowed reliance on the oral agreement and
persisted that the respondent’s claim was based on him being a bona fide
possessor of the bales.

[18] Relying on Saayman v Road Accident Fund,5 applicants’ counsel
argued that the submission by the respondent’s counsel amounted to a
concession which was never withdrawn. Such concession, the argument
continued, prejudiced the applicants in that they were under the impression
that they had to defend a claim of ownership of a bona fide possessor and

4 Tshivhase Royal Council & another v Tshivhase & another; Tshihvase & another v Tshivhase &
another 1992 (4) SA 852 (A) at 859E-F.
5 Saayman v Road Accident Fund 2011 (1) SA 106 SCA; [2010] ZASCA 123.

not ownership based on the oral agreement.

[19] I find it necessary to refer to the opening address by the respondent’s
counsel. This is what he said:
‘Die saak van die eiser opsommender gewys, U Edele, is dat daardie oulandsgras is
vrugte van die grond, en die mees natuurlikse vorm van waarop eiendomsreg bekom
kan word is afsnyding en in besitname. En toe ons as ’n bona fide besitter van daardie
grond in terme van ’n ooreenkoms dit afgesny het en in besit geneem het deur dit te
gaan pak in daardie, met die kampies, het ons die eienaar daarvan geword.’ (my
emphasis).

[20] The submission by the respondent’s counsel does not amount to an
admission that the claim is based on the respondent being a bona fide
possessor. Such submission is described in Saayman as follows:
‘[12] To my mind this was not an unequivocal admission but a mere concession made
by counsel in the course of his address. Such a concession may be withdrawn at any
time, particularly where such a withdrawal will not cause the other party any prejudice.
. . .
[29] Concessions are made by counsel in the course of a trial for a variety of reasons
without a contemplation that he is thereby committing his client and without any
intention to limit issues. The statement in question may, for example, be used as an
assumption on which to found argument, or be made in a bona fide spirit of fairness,
intending to convey to the court counsel’s candid view of the way the court should
proceed.’6
It is clear from counsel’s submission that he did not disavow the
respondent’s reliance on the oral agreement.

[21] Accepting that counsel, in his opening address, referred to the
respondent as a bona fide possessor, that does not change the respondent’s

6 Ibid.

claim as pleaded in his particulars of claim. Neither does it alter the
evidence of Mr Pretorius which is supported by that of the respondent that
they entered into an oral agreement in terms of which the respondent
acquired ownership of the bales. Moreover, the trial court, after referring to
the definition of a bona fide possessor, noted that:
‘In hierdie geval het die eiser regtens aanspraak op die vrugte, na my mening, in terme
van die kontrak met Theunis. Dit mag dus wees dat die posisie van ‘n bona fide
possessor nie eers ter sprake kom nie, maar, as hierdie gevolgtrekking verkeerd is, blyk
dit uit die gesag, soos dit aangehaal is, dat die eiser in elke geval in alle opsigte
kwalifiseer vir eiendomsreg van die bale as hy ‘n bona fide possessor is.’

[22] The court found that the respondent succeeded in proving that he
became the owner of the bales in terms of the oral agreement concluded
with Mr Pretorius. It found further that this agreement granted the
respondent the right to claim the bales from the applicants.

[23] The question is whether the applicants were prejudiced as a result of
that submission. It has to be noted that notwithstanding the submission by
counsel, the evidence of both Mr Pretorius and the respondent during the
trial was that the respondent acquired ownership of the bales through an
oral agreement entered between them. This evidence was not disputed.
Counsel for the applicants failed to show us how the applicants could have
conducted their defence differently had the submission not been made.

[24] Having stated the above, I find that the applicants failed to show that
they have prospects of success in the appeal.

[25] In the result:
1 The application for condonation is dismissed with costs.
2 The appeal is struck from the roll.

__________________
FE Mokgohloa
Judge of Appeal

APPEARANCES

For Appellant:
W Sibuyi

Instructed by:        Morne Coetzee Attorneys, Pretoria

Lovius Block: Bloemfontein

For Respondent:   P L Uys

M Van der Westhuizen
Instructed by:        Gerhard Von Wielligh Attorneys, Ermelo

Kramer Weihmann & Joubert Inc, Bloemfontein