Simon Lindsay Draycott v Max Hurbert Bega and Others

The dispute concerned the purchase and sale of two immovable properties (Erf 547 and Erf 551) by the respondents from the applicant. Transfer occurred on 9 and 12 September 2016 respectively. The properties actually belonged to the Ethekwini Municipality and the applicant lacked legal standing to sell them as he did not own or hold title to them. The transfers were set aside by urgent declarator on 6 September 2018. The respondents successfully sued the applicant for the purchase price on 10 October 2022. The applicant's application for leave to appeal was refused by the KwaZulu-Natal High Court, Durban. A petition to the Supreme Court of Appeal was refused on 16 November 2023 by Goosen JA and Chetty AJA. On 29 January 2024, the applicant applied for reconsideration under s 17(2)(f) of the Superior Courts Act. Condonation was granted on 6 March 2024 and the matter referred for oral argument. The applicant failed to file heads of argument by 16 August 2024. A reinstatement application was filed on 29 August 2024 without an application for condonation for the late filing of heads of argument.

• Whether an appeal which has lapsed due to failure to file heads of argument within the prescribed time can be reinstated without an application for condonation
• Whether the reconsideration application was properly before the Court given the lapse of the appeal
• The requirements for reinstating a lapsed appeal under Rule 10(2A)(a) of the Supreme Court of Appeal Rules

The matter was struck from the roll with costs on 20 August 2025.

An appeal that has lapsed due to failure to file heads of argument within the prescribed time under Rule 10(2A)(a) of the Supreme Court of Appeal Rules can only be revived through a proper application for condonation. A reinstatement application without an accompanying condonation application is insufficient to bring a lapsed appeal properly before the Court. The principle applies equally to reconsideration applications referred for oral argument under s 17(2)(f) of the Superior Courts Act.

The Court made observations about the explanations provided in the reinstatement affidavit, which attributed delays to the client's failure to make timely payment, counsel's involvement in other matters including a full bench appeal, and counsel's acting judge role. While not directly addressed in the judgment's reasoning, these factors were evidently considered insufficient. The Court referenced Rule 11A regarding personal costs orders where non-compliance with rules adversely affects the hearing, though no such order was made in this case. The Court also noted approvingly the principle from SA Express Ltd v Bagport that condonation requires satisfactory explanation not only for the initial delay but also for any delay in seeking condonation, which must be applied for as soon as the party becomes aware of non-compliance.

This case reinforces the strict application of the Supreme Court of Appeal Rules regarding compliance with time limits for filing heads of argument. It emphasizes that Rule 10(2A)(a) operates automatically to cause an appeal to lapse when heads of argument are not filed within the prescribed period. The case confirms that condonation is not a mere formality and must be specifically applied for to revive a lapsed appeal, and that a reinstatement application alone is insufficient. The judgment demonstrates the Court's approach to procedural non-compliance and the importance of parties adhering to court rules and directions, particularly regarding filing deadlines. It also illustrates that even in reconsideration applications under s 17(2)(f) of the Superior Courts Act, procedural requirements must be strictly observed.