Zimslate Quartzite (Private) Limited and Others v Central African Building Society

The applicants noted an appeal on 29 January 2016 against a High Court judgment dated 20 January 2016 ordering them to pay the respondent US$324,815.49 plus interest and costs. In the notice of appeal, they undertook to pay security for costs of appeal as soon as determined by the Registrar. On 26 May 2016, the Registrar wrote to the applicants instructing them to deposit $3,200.00 for preparation of the appeal record within five days. The letter was delivered at the first to third applicants' address for service on 5 June 2016, but their legal practitioners had relocated without leaving a forwarding address and failed to notify the Registrar of the change of address as required by Rule 10. The applicants did not comply with the payment requirement. On 6 July 2016, the Registrar advised the applicants that their appeal had lapsed in terms of Rule 34(5). The applicants then filed two successive applications for reinstatement of the appeal, the first being struck off on 14 February 2017, and the second filed on 17 February 2017.

• Whether the application for reinstatement of an appeal that had lapsed under Rule 34(5) was procedurally proper
• Whether the application constituted a contradiction in terms by seeking both reinstatement and extension of time to appeal
• The interpretation and effect of Rule 34(5) regarding lapsing of appeals for non-payment of costs
• Whether the applicants had shown good cause for the grant of relief under Rule 34(5)
• Whether condonation should be granted despite not being expressly sought in the application
• The consequences of legal practitioners' failure to comply with court rules and notify the Registrar of change of address

The application for reinstatement of the appeal was dismissed with costs.

An applicant seeking relief under Rule 34(5) for reinstatement of a lapsed appeal must show good cause, which requires: (1) an express application for condonation of non-compliance with the Rules; (2) a full, honest and satisfactory explanation for the default; (3) demonstration that the appeal was noted in good faith with prospects of success; and (4) evidence of genuine intention to prosecute the appeal. The onus rests on parties to notify the Registrar of any change of address in terms of Rule 10, and failure to do so cannot be attributed to the Registrar. Courts will not grant indulgences to applicants who exhibit disdain for court rules, blame court officials for their own failures, or employ delaying tactics.

The court observed that the wording of Rule 34(5) using "lapsed unless" creates interpretative difficulties regarding whether an appeal is completely terminated/voided upon non-compliance or merely falls into abeyance, and whether lapsing only takes effect upon judicial refusal to grant relief. The court noted that the Rule speaks of "relief" rather than "reinstatement" specifically. The court also commented that in applications necessitated by breach of Rules, it is imperative that condonation be sought as the applicant is seeking an indulgence from the court. The court remarked that any right-thinking legal practitioner would have hastily approached the High Court to make payment in the interests of progress rather than seeking reassessment of already-determined costs.

This case clarifies the procedural requirements and standard for obtaining relief under Rule 34(5) of the Supreme Court Rules when an appeal has lapsed for non-payment of costs. It emphasizes that applicants seeking such relief must expressly apply for condonation, provide honest and satisfactory explanations for non-compliance, and demonstrate good faith in prosecuting the appeal. The judgment reinforces that the onus is on parties and their legal practitioners to notify the court of changes of address as required by the Rules, and that failure to do so cannot be blamed on the Registrar. It also demonstrates the court's willingness to dismiss applications where there is evidence of delaying tactics and lack of seriousness in prosecuting appeals, even where there may be arguable grounds of appeal.