THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 056/2021

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, EASTERN CAPE PROVINCE
APPLICANT

and

Y N obo E N
RESPONDENT

Neutral citation: The Member of the Executive Council for Health, Eastern
Cape Province v Y N obo E N (056/2021) [2023] ZASCA 32 (30 March 2023)
Coram:
SCHIPPERS, GORVEN and GOOSEN JJA and KATHREE-
SETILOANE and UNTERHALTER AJJA
Heard:
14 March 2023
Delivered: 30 March 2023
Summary: Application for condonation for late filing of record of appeal and
reinstatement of appeal – gross non-compliance with rules and failure to provide
reasonable explanation – no basis to consider prospects of success – record
incomplete – application dismissed.

________________________________________________________________

ORDER
________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Mthatha (Tokota J,
Dukada and Dunywa AJJ), sitting as court of appeal:
The application for condonation of the late filing of the record of appeal is
dismissed.
The applicant is ordered to pay the respondent’s costs of the application
and of the appeal.
________________________________________________________________

JUDGMENT
________________________________________________________________
Goosen JA (Schippers and Gorven JJA and Kathree-Setiloane and
Unterhalter AJJA concurring):
[1] The applicant is the Member of the Executive Council for Health, Eastern
Cape Province (the MEC) who seeks to prosecute an appeal against an order of
the Eastern Cape Division of the High Court, Mthatha (the full court), which was
delivered on 23 July 2020. The first hurdle which the MEC must overcome, is
that the appeal has lapsed in terms of rule 8(3) of the Rules of this Court (the SCA
rules). This Court is accordingly required to decide whether to reinstate the
appeal.

[2] The respondent instituted an action for damages against the MEC in the
Eastern Cape Division of the High Court, Mthatha (the high court). The claim
was founded upon the alleged failure of medical staff employed by the MEC at
Sipetu Hospital (the hospital) in the Eastern Cape, to provide adequate care and
treatment to the respondent during the delivery of her daughter. The child was

born at the hospital on 1 January 2010. It is common cause that the child was
diagnosed as suffering from spastic non-ambulatory cerebral palsy after
sustaining a hypoxic ischaemic insult intrapartum, ie, during labour and the birth.

[3] The high court (Mjali J) in a judgment delivered on 30 October 2018, found
the MEC liable. Leave to appeal was refused. However, on 19 August 2019, this
Court granted leave to appeal to a full court. On 23 July 2020, the full court
dismissed the appeal. This Court granted special leave to appeal to it on 16
October 2020.

[4] A party who wishes to pursue an appeal to this Court is required to file a
notice of appeal within one month of the date on which leave to appeal is granted.1
The notice was filed on13 January 2021.2 In accordance with SCA rule 8(1), the
MEC was required to lodge with the registrar the record of the proceedings before
the court a quo (in this case, the full court), within three months of filing the notice
of appeal. The MEC was therefore required to file the record on or before 21 April
2021.3

[5] No extension of the period for lodging of the record was agreed between
the parties, nor was any extension granted by the registrar.4 The record was not
lodged within the prescribed period. Therefore, in terms of SCA rule 8(3), the
appeal lapsed.5

1 SCA Rule 7.
2 The notice of appeal refers to special leave granted on 9 December 2020. This is incorrect. That is the date on
which the registrar of this Court dispatched a copy of the order granting leave to appeal to the parties. The delay
in doing so, arose because of an administrative problem in the registrar’s office, for which the registrar apologised.
3 It is not apparent from the record why this date was set.
4 On 7 May 2021, the State Attorney made application to the registrar for an extension of the time for filing of the
record. The registrar refused the request on the basis that such application should have been made before 21 April
2021 when the record was due.
5 The registrar formally advised the State Attorney on 14 June 2021 that the appeal had lapsed on 21 April 2021.

[6] On 29 June 2022, one year and two months after the expiry of the period
within which it had to be lodged, the record was lodged with the registrar. An
application for condonation and reinstatement of the appeal was filed on the same
date.

[7] In order to reinstate a lapsed appeal, a party must obtain condonation for
its failure to comply with the SCA rules. The principles governing an application
for condonation, in the context of reinstatement of an appeal, have been stated on
many occasions. It suffices to refer to Mulaudzi v Old Mutual Life Assurance Co
(South Africa) Ltd and Others, where Ponnan JA stated:
‘What calls for an explanation is not only the delay in the timeous prosecution of the appeal,
but also the delay in seeking condonation. An appellant should, whenever he realises that he
has not complied with a rule of this court, apply for condonation without delay. A full, detailed
and accurate account of the causes of the delay and their effects must be furnished to enable
the Court to understand clearly the reasons and to assess the responsibility. Factors which
usually weigh with this court in considering an application for condonation include the degree
of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest
in the finality of the judgment of the court below, the convenience of this court and the
avoidance of unnecessary delay in the administration of justice.’6

[8] The touchstone for such an application is the interests of justice, which
depends on the facts and circumstances of each case. The factors relevant to this
enquiry include the nature of the relief sought, the extent and cause of the delay,
the reasonableness of the explanation of the delay, the effect of the delay on the
administration of justice and other litigants, and the prospects of success.7 The

6 Mulaudzi v Old Mutual Life Assurance Company (South Africa) Ltd and Others [2017] ZASCA 88; [2017] 3
All SA 520 (SCA); 2017 (6) SA 90 (SCA) para 26.
7 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837 (CC) para 3;
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24;
2008 (2) SA 472 (CC) para 20.

applicant must give a full explanation for the delay, which must be reasonable
and cover the entire period of the delay.8

[9] Before dealing with the MEC’s explanation for the failure to comply with
the SCA rules, an aspect relating to the record itself must be highlighted. The
record that was eventually filed does not include a transcript of the evidence of
two witnesses, who presented evidence on behalf of the MEC at the trial. They
are the midwife and senior nurse who attended to the respondent during the
delivery of her baby. Although it was submitted that the attorneys had agreed to
its exclusion, no such agreement is recorded in the practice note filed by the MEC.
The respondent’s practice note merely states that the record is incomplete. The
exclusion of this vital evidence from the record is inexplicable, given that one of
the grounds of appeal is that the full court had erred in holding that the nursing
staff were negligent in failing to monitor the foetal heart rate; and that they could
have taken steps to avoid the harm suffered by the child. Counsel for the MEC
rightly conceded that this Court would not be able to consider the appeal without
this evidence.

[10] To remedy this situation, the respondent’s attorney, of his own accord, filed
a supplementary bundle to the appeal record. This document, however, is not
certified by the registrar of the court a quo in accordance with SCA rule 8(5). It
is therefore not properly before this Court. The upshot is that the record of appeal
is still not a complete record.

[11] The State Attorney’s explanation for the failure to lodge the record within
the three-month period is that ‘the delay was occasioned by the hold up in having

8 Van Wyk fn 7 above para 22.

the record transcribed, by Inlexso, the company responsible for the transcription’.
He asserts that the person responsible for preparing the record encountered
unforeseen and personal difficulties. As will become apparent, this is no
explanation.

[12] An appeal was prosecuted before the full court, which had before it a
transcribed record prepared for that appeal. It should therefore not have been
difficult to prepare a record for this Court within the prescribed time. The delay
is explained by way of a litany of dates of telephone calls and emails between the
attorney, counsel and Inlexso, the company engaged to ‘convert’ the record. It is
not necessary to recount this chronology. It divides the period of delay into three
periods. The first is the period from January 2021 up to September 2021, when
there was an attempt to file the record. However, the State Attorney in
Bloemfontein advised the applicant’s attorney that the record did not comply with
the SCA rules. The second is the period from the end of September 2021 to
February 2022, when a corrected record was submitted to the registrar but
rejected for non-compliance with the SCA rules. The third is the period from
February 2022 until the record was lodged on 29 June 2022.

[13] In each of these periods there are months of delay which are unexplained.
For example, the affidavit states that ‘counsel started working on the record from
1 March 2021’ – six weeks after the notice of appeal had been filed. The affidavit
states that the record was dispatched to Inlexco for cross referencing on 1 April
2021, before the expiry of the period for the filing of the record. Yet there is no
explanation for why this could not be done in the available time or within a
reasonable time thereafter.  There is no explanation for a delay of one month
between 14 June and 14 July 2021.  In September 2021 the State Attorney in
Bloemfontein pointed out the deficiencies in the appeal record. These included
the absence of colour photographs, illegible pages, the use of the incorrect appeal

case number and the absence of proper cross-referencing of exhibits.  There is no
explanation for why these deficiencies were not corrected forthwith. Instead, it
took a further four months before the corrected record was submitted to the
registrar but rejected for non-compliance with the SCA rules. In that period, a
delay of one month from 28 October to 26 November 2021 was not explained at
all. After the registrar rejected the record on 4 February 2022, it took another four
months before the record was finally filed. This encompassed a six-week delay
between 24 April and 7 June 2022, apparently because counsel had not been paid
and hence could not continue to work on the preparation of the record.

[14] Although the prospects of success on appeal is generally an important
consideration in relation to the reinstatement of an appeal, it is not decisive.9
Where the degree of non-compliance is flagrant and substantial, condonation may
be refused irrespective of the prospects of success.10 If the explanation for such
flagrant and substantial non-compliance is manifestly inadequate or there is no
explanation at all, the prospects of success need not be considered.11 This is such
a case.

[15] The effect of the delay in the filing of the record upon the administration
of justice and upon the interests of the respondent, is self-evident. At issue in this
case is liability for harm caused to a child, who is permanently disabled, and
whose interests are paramount.12 She was born on 1 January 2010. Liability was
determined by the trial court on 30 October 2018 and confirmed on appeal on 23
July 2020. The interests of the respondent and the minor child cannot be ignored.

9 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532; Commissioner: South African Revenue Service,
Gauteng West v Levue Investments (Pty) Ltd [2007] 3 All SA 109 (SCA) para 11.
10 PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A)
at 799 D-E; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281J-282A.
11 Darries v Sheriff, Magistrate’s Court, Wynberg, and Another 1998 (3) SA 34 (SCA) at 44H-I; See also Kekana
v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) at 652 B-F; Minister of Finance and Others v Gore
NO [2007] 1 All SA 309 (SCA); 2007 (1) SA 111 (SCA) para 2; Mulaudzi fn 6 above para 35.
12 Section 28(2) of the Constitution provides that ‘(a) child’s best interests are of paramount importance in every
matter concerning a child’.

The quantum of the loss suffered by them is yet to be determined and they are yet
to receive compensation in accordance with the loss.

[16] Counsel for the applicant conceded that a proper case for condonation was
not made out. Finally, it must be said that the way in which the State Attorney,
Mthatha dealt with this matter is to be strongly deprecated. There was a flagrant
disregard of the SCA rules. This Court, on more than one occasion, has stated
that in such cases punitive personal costs orders may be appropriate.13

[17] In the result:
The application for condonation of the late filing of the record of appeal is
dismissed.
The applicant is ordered to pay the respondent’s costs of the application
and of the appeal.

_________________
G G GOOSEN
JUDGE OF APPEAL

13 Reck v Mills en ‘n Ander 1990 (1) SA 751 (A) at 753J-754F, 760C-D; Napier v Tsaperas 1995 (2) SA 665 (A)
at 671E-J; Darries fn 11 above at 44J-45A.

Appearances

For the appellant:

B J Pienaar SC and T M Jikwana
Instructed by:

State Attorney, Mthatha

State Attorney, Bloemfontein

For the respondent:

P Uys
Instructed by:

Enzo Meyers Attorneys, East London

McIntyre Van der Post Inc, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

30 March 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
The Member of the Executive Council for Health, Eastern Cape Province v Y N obo E N (Case no
056/2021) [2023] ZASCA 32 (30 March 2023)

The Supreme Court of Appeal (SCA) today dismissed an application for condonation for the late filing
of a record of appeal, with costs.
The plaintiff (Y N) had instituted an action for damages against the MEC for Health, Eastern Cape (the
MEC) arising from injuries suffered by her minor child during birth at Sipetu Hospital in the Eastern
Cape. The child was born on 1 January 2010. She was diagnosed as suffering from spastic non-
ambulatory cerebral palsy.
On 30 October 2018, the Eastern Cape Division of the High Court, Mthatha (the trial court) held the
MEC liable for the negligent conduct of medical personal at the Sipetu Hospital. Leave to appeal against
the judgment of the trial court was granted by the SCA. Thereafter an appeal was prosecuted before a
full court of the Eastern Cape Division of the High Court, Mthatha (the full court). The full court dismissed
the appeal on 23 July 2020. Special leave to appeal to the SCA was granted on 16 October 2020.
The MEC failed to file the record of appeal which was due on 21 April 2021. The record was filed on 29
June 2022, fourteen months after the expiry of the initial period of three months allowed for the filing of
the record. The appeal had therefore lapsed.
The SCA found that the explanation provided for the failure to comply with the rules and to file the record
within the prescribed period, amounted to no explanation. It found that the non-compliance was gross
and that there had been a flagrant disregard of the rules of the Court. The SCA reaffirmed the principle
that in circumstances where the non-compliance with the rules was flagrant and no reasonable
explanation was provided, condonation might be refused irrespective of the prospects of success. It
held that this was such a case. It noted that the record that had been filed, omitted the evidence of two
vital witnesses. No agreement had been reached to exclude this evidence and no explanation was
provided for its omission. The record was therefore incomplete.
It dismissed the application for condonation with costs and ordered the MEC to pay the plaintiff’s costs
of appeal.
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