Click here to read the judgment on Saflii

[1]          This is an appeal against the judgment of Makume J (“the court a quo”) brought with leave of the Supreme Court of Appeal granted on 4 September 2023. The appeal relates to the enforcement of an adjudicator’s decision communicated to the parties on 16 November 2020 (‘the Decision’).

Condonation

[2]          The appellant, Eskom, has delivered, rather belatedly, a reinstatement and condonation application on 3 July 2024, no doubt as a response to the respondent’s, Babcock’s, heads of argument delivered on 30 May 2024, regarding the lapse of this appeal. In addition, Babcock notified Eskom of the lapsing of the appeal earlier than the delivery of Babcock's heads, in two letters dated 2 May and 8 May 2024 respectively. Eskom seeks (conditional) condonation for the late filing of the record as well as the delivery of security for costs, which is opposed.

[3]          Eskom's version in this reinstatement application is that it could not apply for a hearing date without delivering the record, and that it could not deliver the record without entering into security for costs. Eskom's initial tender of R 50,000 as security for Babcock's appeal costs, was unsurprisingly rejected by Babcock. Eskom in turn, rejected Babcock's proposal of R 250 000. Subsequently, on 8 February 2024, after hearing both parties pursuant to rule 49(13)(b) of the Uniform Rules of Court, the Registrar fixed R 350 000 as the amount for security, to be provided by way of bank guarantee or as agreed otherwise between the parties. However, there was no such agreement.

[4]          Eskom sought to review the Registrar's decision, which it never pursued. It is common cause that, Eskom's attorneys filed a written notice that it holds R 350,000 as security. However, it does not secure Babcock to the same extent and falls short of the Registrar's ruling that security in favour of Babcock be provided by bank guarantee. At the appeal hearing, Eskom tendered to correct the position by providing the requisite bank guarantee the very next day.

[5]          It is trite that in all cases of time limitation, whether statutory or in terms of the Rules of Court, this Court has inherent powers to condone the non-compliance with time limits where the principles of justice and fair play demand it and where the reasons for non-compliance with the time limits have been explained satisfactorily.[1]    

[6]          Relevant considerations may include not only the explanation therefor, but also include the degree of non-compliance with the rules, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his or her judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice. There is no exhaustive list.[2]