The Chairperson of the North West Gambling Board & Another v Sun International (SA) Limited

The appellants (the Chairperson and the North West Gambling Board) appealed against a judgment by the North West High Court (Gutta AJ) delivered on 25 May 2018, which found in favour of Sun International (SA) Limited (SISA) regarding whether "Free Play" credits given to valuable customers should be excluded from gross gaming revenue calculations for levy purposes. The Board was granted leave to appeal on 25 October 2019 and served its notice of appeal on 13 November 2019. The Board was required to file the record by 13 March 2020, which was extended to 14 April 2020. However, the Board failed to file the record by this date, citing COVID-19 lockdown reasons. The record was eventually filed on 4 May 2020 without an application for condonation. The Board also failed to file its heads of argument by the due date of 15 June 2020, waiting until 21 December 2020 (six months late) to file them along with a condonation application. The Board's explanation for the delays included COVID-19 lockdown and its decision to hold the appeal in abeyance while monitoring a similar Western Cape matter for potential consolidation. Throughout the process, the Board demonstrated a pattern of non-compliance, being late in filing leave to appeal, heads of argument in the High Court, and multiple documents before the Supreme Court of Appeal.

• Whether condonation should be granted for the late filing of the appeal record
• Whether condonation should be granted for the late filing of heads of argument
• Whether the appeal should be reinstated after it had lapsed
• What constitutes adequate explanation for non-compliance with the Rules of Court
• Whether good prospects of success on appeal are sufficient to outweigh flagrant and gross non-observance of court rules
• The extent to which an applicant must explain each period of delay in condonation applications

1. The application for condonation for the late filing of the record of appeal was dismissed, with no order as to costs. 2. The application for condonation for the late filing of the appellants' heads of argument was dismissed, with no order as to costs. 3. The main matter was struck from the roll with costs.

Where an applicant has flagrantly and grossly failed to comply with the Rules of Court on multiple occasions, condonation will be refused regardless of the prospects of success on appeal. An applicant seeking condonation must: (1) provide a proper and detailed explanation for each period of delay, not merely generalised causes; (2) apply for condonation as soon as non-compliance is realized, not months later; (3) take reasonable steps to communicate with the court and other parties about compliance difficulties; and (4) demonstrate respect for the Rules of Court and the administration of justice. Good prospects of success on the merits, while an important factor, are not determinative and cannot overcome a pattern of blatant disregard for procedural rules. The cumulative effect of repeated non-compliance, inadequate explanations, and dilatory conduct will result in the refusal of condonation applications as such conduct is prejudicial to the administration of justice, the integrity of the appeal process, and the functioning of appellate courts.

The Court noted that SISA had withdrawn its opposition to the condonation applications shortly before the hearing, but observed that this did not relieve the Board of its duty to make out a proper case for condonation. The Court stated it was prepared to assume that the Board had good prospects of success on appeal for purposes of the condonation application. The Court commented that an applicant with an overwhelming case is hardly likely to be careless in pursuing its interest, while one with little hope of success can easily be understood to drag its heels - this principle applied to the Board's lackadaisical conduct despite potentially good prospects. The Court noted that while it was not necessary to deal with prejudice to SISA given its withdrawal of opposition, there were other prejudicial considerations including the conduct's effect on the administration of justice, the integrity of the appeal process, and the functioning of appellate courts. The Court mentioned that an application by the Western Cape Gambling and Racing Board to intervene in the appeal had been filed on 29 October 2021, was dealt with at the hearing, and was dismissed by the Court.

This case is significant in South African civil procedure law as it reinforces the principle that condonation for non-compliance with court rules is not automatic or merely formal, even where an applicant may have good prospects of success on the merits. It establishes that flagrant and gross disregard for court rules will result in refusal of condonation regardless of the strength of the case. The judgment emphasizes the importance of: (1) providing detailed explanations for each period of delay; (2) applying for condonation as soon as non-compliance is realized; (3) communicating with the court and opposing parties about difficulties in compliance; and (4) respecting the Rules of Court as essential to the proper administration of justice. The case serves as a stern warning that repeated and unexplained non-compliance with procedural rules undermines the integrity of the appeal process and will not be tolerated by the courts. It demonstrates that courts will exercise their discretion to refuse condonation where an applicant's conduct displays a pattern of disrespect for court processes, even when this means denying a litigant the opportunity to pursue an appeal with merit.