Reinhardo and Others v. Trans Okavango (Pty) Ltd (1993)Citation: 1993 BLR 252 (CA)

1. Case Title & Citation

• Reinhardo and Others v. Trans Okavango (Pty) Ltd (1993)
  Citation: 1993 BLR 252 (CA)

2. Court Name & Bench

• Court: Court of Appeal, Lobatse (Botswana)
• Judge: Aguda JA
• Bench Type: Court of Appeal, Single Judge

3. Date of Judgment

• 14 July 1993

4. Parties Involved

• Applicants/Appellants: Reinhardo and others (business partners disputing validity of an agreement).
• Respondent: Trans Okavango (Pty) Ltd, a company seeking enforcement of rights under a contested agreement.
  

5. Facts of the Case

On 24 November 1992, Trans Okavango (respondent) filed a motion for an interdict prohibiting the applicants from entering certain property allegedly belonging to it. A rule nisi was granted by the High Court on 27 November 1992. Both parties agreed to let the High Court first determine the validity of an agreement dated 10 June 1992.
On 5 March 1993, the High Court (Horwitz Ag. J.) held that the agreement was void for vagueness and gave consequential orders. The applicants instructed their lawyers to lodge an appeal immediately (25 March 1993), but due to negligence of their attorneys no appeal was filed until 30 April 1993, well outside the six-week limit under Rule 13 of the Court of Appeal Rules. The Registrar rejected the appeal for lateness. 

On 22 June 1993, applicants applied for leave to appeal out of time, leading to this case.

6. Issues Raised

• Whether an application for leave to appeal out of time can be made ex parte.
• What requirements must be satisfied for granting leave to appeal out of time.
• Whether the applicants had shown sufficient cause and reasonable prospects of success to justify condonation of late filing.
  

7. Arguments of the Parties

Applicants (Reinhardo & Others):

The Applicants contended that their failure to file on time was not deliberate but stemmed from their counsel’s negligence, despite them giving timely and clear instructions. They relied on Rule 14(1) of the Court of Appeal Rules, arguing that an application for condonation may be made ex parte and should not automatically be dismissed for procedural delay.

They maintained that the agreement in dispute could be upheld as valid, since the essential terms were sufficiently clear and capable of enforcement, contrary to the High Court’s finding of vagueness.  They urged the court to adopt a liberal approach to condonation in the interests of justice, particularly where the merits of the appeal demonstrated arguable issues.

They further argued that refusing condonation would amount to punishing innocent litigants for their lawyer’s mistake, thereby undermining their constitutional right to access the courts.

Respondent (Trans Okavango Pty Ltd):

The Respondent argued that counsel’s negligence is not always a sufficient excuse for procedural default, especially where litigants themselves have a duty to ensure compliance with court timelines. They contended that the Applicants’ reliance on Rule 14(1) was misplaced, since the rule does not exempt them from compliance with the broader principles governing condonation, including demonstrating bona fides and good cause.

The Respondent maintained that the agreement was void for vagueness, as the essential terms (particularly relating to obligations and performance) were incomplete and uncertain, rendering the prospects of success minimal to nonexistent.

They emphasized that the Court of Appeal has consistently held that condonation is not a right but a discretionary remedy, granted only where there is a full, satisfactory, and reasonable explanation for the delay coupled with strong prospects of success.

They further argued that granting condonation in this case would set a dangerous precedent, encouraging laxity and disregard for procedural rules, thereby undermining the efficient administration of justice.

The Respondent relied on this precedent to emphasize that an application for condonation can be refused if the prospects of success on appeal are poor, remote, or virtually non-existent.

They argued that, in line with Melane, it is not sufficient for Applicants to merely show a procedural error; they must also demonstrate a reasonable chance of success on the merits.

The Respondent submitted that because the High Court had found the agreement void for vagueness, the Applicants’ chances of overturning that decision were slim, making condonation inappropriate. They highlighted that Melane establishes a dual requirement: a good explanation for the delay and reasonable prospects of success, both of which must be satisfied for condonation to be granted.

8. Judgment / Final Decision

• The Court held that:

The Court clarified that applications for leave to appeal out of time must be served on all affected parties; they cannot be made purely ex parte. This distinction was drawn to ensure fairness to respondents, particularly in cases where the right to appeal exists but was not exercised within the statutory period.

Regarding the cause of the delay, the Court found that it was primarily due to the negligence of the applicants’ counsel, rather than any fault on the part of the applicants themselves. The Court emphasized that it would be unfair to penalize the applicants for their legal representative’s failure when they had given timely and unequivocal instructions.

The Court concluded that the applicants had demonstrated good cause for the delay, as the application for leave was made shortly after the expiry of the statutory period. Furthermore, upon reviewing the proposed grounds of appeal, the Court found that the applicants had reasonable prospects of success, since the High Court’s finding of vagueness in the agreement was not so definitive as to preclude a successful appeal.

Consequently, the Court granted leave to appeal out of time, but required that the notice of appeal be properly filed within 14 days, ensuring compliance with procedural rules. The Respondent was ordered to bear the costs of the application.

• Order:

Leave to appeal out of time granted.

Applicants to file notice of appeal within 14 days.

Respondents to bear costs.

9. Legal Reasoning 

•  Ratio Decidendi

The Court’s reasoning centered on the dual requirements under Rule 8(2) of the Court of Appeal Rules, which mandate that an applicant for leave to appeal out of time must demonstrate both good and substantial reasons for the delay and proposed grounds of appeal showing prima facie prospects of success. The Court emphasized that these requirements ensure that condonation is granted only where there is a justified cause for the procedural lapse and a real chance of success on the merits, preventing frivolous or opportunistic appeals.

In assessing the cause of the delay, the Court recognized that counsel’s negligence, in circumstances where the clients had given clear and timely instructions, should not automatically prejudice the applicants. Following the precedent in Regal v. African Superslate (Pty) Ltd. 1962 (3) SA 18 (A), the Court held that delays attributable solely to an attorney’s error cannot be imputed to the client, particularly when the client acted diligently and in good faith. This principle reflects the broader notion of fairness, ensuring that litigants are not punished for failings outside their control.

Finally, the Court balanced the need for efficient judicial proceedings with the principle of justice. While it is important that litigation be concluded expeditiously, justice also requires that a litigant not be deprived of the statutory right of appeal due to the errors of counsel. In this case, the Court found that the agreement in question had arguable validity, meaning that the applicants had a reasonable prospect of success. Therefore, the Court held that condonation was appropriate, allowing the appeal to proceed and ensuring that the merits of the dispute could be examined without undue procedural prejudice.

• Obiter Dicta

The Court made several observations that, while not strictly necessary to the decision, provide persuasive guidance for future cases. It emphasized the balance between efficient judicial proceedings and fairness, noting that “justice also requires that a litigant not be deprived of a right of appeal due to counsel’s error.” This reflects a broader principle of procedural fairness in civil litigation and the protection of litigants’ rights.

Aguda JA also commented on interpreting agreements drafted by laypersons, stating that “one cannot look at an agreement drawn up entirely by lay businessmen with the eyes with which one should look at contracts drawn up by lawyers.” Although related to assessing reasonable prospects of success, this observation extends beyond the immediate procedural question and offers guidance for cases involving informal agreements.

Finally, the Court highlighted a liberal approach to condonation in the interest of justice and reiterated that while counsel acts as the agent of the client, “it is not always fair to visit the sin of counsel on the client.” These remarks provide persuasive commentary for future cases concerning attorney negligence and the protection of clients, even though they were not essential to granting leave to appeal out of time.

10. Conclusion / Observations

This case clarified the criteria for condonation of late appeals in Botswana, establishing that applicants must demonstrate both good and substantial reasons for the delay and prima facie prospects of success on appeal. These requirements ensure that only justified delays with a reasonable chance of success are condoned, preventing frivolous or opportunistic applications.

The Court further confirmed that applications for leave to appeal out of time must be served on all other parties to the suit, meaning such applications cannot be pursued purely ex parte. This procedural requirement ensures fairness and transparency in the appellate process.

Importantly, the case reflects the Court’s effort to balance procedural strictness with substantive justice, ensuring that litigants are not unfairly penalized for the negligence of their legal representatives. The decision emphasizes that justice requires allowing a meritorious appeal to proceed even if technical deadlines were missed due to factors outside the client’s control.

From the judgment, we understand that the Court is generally more lenient when the fault lies with attorneys rather than clients, recognizing that clients give timely and clear instructions but rely on their counsel to act. However, there is no similar leniency when the delay results from the client’s own inaction, as clients are presumed to understand and protect their legal rights, unlike attorneys who are expected to know and apply the law.