Skhumbuzo Zulu v Vikizitha R Mlotshwa and Others

The applicant and other members of the National Freedom Party instituted an application in the KwaZulu-Natal Division of the High Court, Pietermaritzburg, against the party and nine other members seeking an order that the conference held in December 2019 at Ulundi, KwaZulu-Natal, and decisions taken at that conference, be declared unlawful, invalid and of no consequence. The high court granted the relief sought and declared the conference and decisions unlawful and invalid. The applicant was granted leave to appeal on 17 November 2023. However, the applicant lodged his notice of appeal late (28 December 2023 with the high court registrar and 5 January 2024 with the SCA registrar), lodged the record of appeal approximately ten months late (29 November 2024), and lodged his heads of argument four weeks late (14 February 2025 instead of by 10 January 2025). The applicant filed applications for condonation for the late notice of appeal and late record, but did not file an application for condonation for the late heads of argument. The record of appeal was also incomplete, with important pages missing from the founding affidavit.

• Whether the appeal should be struck off the roll for non-compliance with the Rules of the Supreme Court of Appeal
• Whether an appeal lapses when heads of argument are lodged late without an application for condonation
• Whether an incomplete record of appeal can be entertained by the court
• What duty rests on an appellant's attorney to prepare a proper and complete record of appeal

The application for reinstatement was struck off the roll, with no order as to costs.

In terms of rule 10(2A)(a) of the Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal, if an appellant fails to lodge heads of argument within the prescribed period or within an extended period, the appeal lapses automatically. An appellant who has failed to lodge heads of argument timeously without seeking condonation must lodge an application to revive and reinstate the lapsed appeal before the appeal can be heard. An appellant's attorney has a duty to ensure that a proper and complete record of appeal is placed before the court, which duty is particularly important where the appellant is dominus litus and the respondents play no part in the appeal. Without a complete record, especially where pages containing portions of the cause of action are missing, the appeal cannot be heard.

The Court made observations about the professional responsibility of attorneys who prosecute appeals on behalf of appellants. The Court noted that attorneys have a duty to peruse the record and ensure it is complete and in compliance with the rules, particularly as they raise fees for executing this duty. The Court criticized the attitude of the applicant's attorney who suggested that deficiencies in the founding papers should not be an impediment to the matter being heard, emphasizing that such an approach is inconsistent with the professional duties owed to the court. The Court also noted that the substantive issues in the appeal (whether the National Freedom Party conference held in December 2019 was lawful and whether decisions taken at that conference were valid and enforceable) could not be considered due to the procedural defects.

This case reinforces the importance of strict compliance with the Rules of the Supreme Court of Appeal, particularly regarding time limits for lodging procedural documents. It clarifies that an appeal lapses automatically when heads of argument are lodged late without an accompanying application for condonation. The judgment emphasizes the professional duty of attorneys to ensure complete and proper records are placed before the court, especially in matters where the appellant is dominus litis and respondents do not participate. The case serves as a cautionary example of how procedural non-compliance can result in an appeal being struck off before the merits can be considered, regardless of the substantive issues at stake.