On 12 June 2006, the first appellant launched an application in the Pretoria High Court seeking an order declaring that the arrest of Khalid Mahmood Rashid on 31 October 2005, his subsequent detention and removal from South Africa were unlawful and inconsistent with the Constitution. The respondents filed an answering affidavit and counter-applied for a contempt of court order against the second and third appellants, alleging they contravened a publication order by Poswa J dated 14 May 2006. The matter proceeded through the High Court and leave to appeal to the Supreme Court of Appeal was granted. The appeal record comprised 12 volumes, the vast majority of which contained irrelevant documents from earlier applications and proceedings unrelated to the substantive appeal. The third appellant, Mr Zehir Omar, the attorney of record, certified that the entire record should be read and that a core bundle was not appropriate due to the "concise nature of the record". By the time of the appeal, Rashid had been released by Pakistani authorities and the first appellant was no longer interested in the matter.
1. The matter is struck off the roll. 2. The third appellant (Mr Zehir Omar) is to pay the wasted costs of the day including the costs relating to the present record, de bonis propriis (from his own resources).
Where an attorney has flagrantly disregarded the rules of court by including irrelevant documents in an appeal record, failing to prepare a proper core bundle, and certifying falsely that the entire bloated record should be read, the court may strike the matter from the roll and order the attorney to pay wasted costs de bonis propriis, particularly where the matter is no longer urgent and the attorney appears to be the primary driver of the litigation. The primary responsibility for a proper appeal record rests with the appellant's attorney. The test for whether to proceed despite a defective record involves balancing the degree of non-compliance against factors such as prospects of success, importance of issues raised, and urgency. There comes a point where "enough is enough" and stern action must be taken to maintain the integrity of the appeal process and deter future misconduct.
Streicher JA observed that the matter is not at the end of the road—once a proper record is prepared, the appellants may apply for reinstatement and condonation, at which point the court may well entertain the matter in light of prospects of success and importance of issues. The majority noted that respondents were also not free from blame as they similarly certified the record was "concise" and should be read in full, though primary responsibility lay with the appellant's attorney. Streicher JA noted it appeared Mr Omar was funding the proceedings himself (no fees having been paid by the applicant or Rashid's family). The dissenting judges observed that trained appellate judges should be capable of sifting through even badly prepared records, especially where all parties are prepared to argue on the proper basis. Cameron JA noted that incomplete and shabby records are not unknown to the court, citing Firechem. The dissent emphasized that the case concerned allegations of unlawful rendition/enforced disappearance which generated considerable public interest domestically and internationally, making early resolution important regardless of the individual's release.
This case is a significant precedent on the standards expected of legal practitioners in preparing appeal records and the consequences of flagrant non-compliance with court rules. It demonstrates that the Supreme Court of Appeal will not tolerate practitioners who treat court rules with contempt, even in cases of public importance. The case establishes that attorneys can be ordered to pay costs personally (de bonis propriis) where their conduct in preparing records is egregiously deficient. It also illustrates the tension between procedural propriety and substantive justice—the majority prioritized enforcement of rules while the minority emphasized public interest in resolving important constitutional questions. The case serves as a stern warning to practitioners about their obligations under the court rules regarding appeal records, practice notes, and core bundles. It also demonstrates that lack of urgency and lack of client interest are relevant factors in deciding whether to strike off rather than proceed despite defects.