Mtshali NO and Others v Buffalo Conservation 97 (Pty) Ltd [2017] ZASCA 127

The case revolves around Buffalo Conservation 97 (Pty) Ltd, a company engaged in breeding disease-free buffalo in KwaZulu-Natal, South Africa. The appellants include Dr. Dumisani Mtshali, the Director of Veterinary Services for the Northern Region of KwaZulu-Natal, the National Directorate of Animal Health, and the Minister of Agriculture and Environmental Affairs.

The core issue is whether these appellants are liable in delict to the respondent for failing to conduct necessary disease tests and issue permits for the translocation of buffalo.

The background facts are as follows:

The respondent, Buffalo Conservation 97 (Pty) Ltd, operated a buffalo breeding program at two locations: Phinda and later Magudu in KwaZulu-Natal. The company specialised in breeding buffalo that were free from Corridor Disease (CD), a significant concern due to the potential transmission of diseases to cattle, which could have dire economic consequences.

The Department of Agriculture and Environmental Affairs, overseen by the Minister, is responsible for enforcing the Animal Diseases Act of 1984. This includes controlling the spread of animal diseases, testing animals upon request, and issuing permits for the movement of buffalo.

The respondent's complaint centers on the inability to move its disease-free buffalo from Magudu due to the refusal of state veterinary officials to conduct the necessary tests for CD. This refusal persisted for several years, effectively preventing the respondent from translocating its buffalo.

The High Court's judgment, delivered on December 10, 2014, found in favour of the respondent, establishing the factual basis for delictual liability against the appellants. The appellants subsequently sought leave to appeal, which was granted with a condonation application due to the notice of appeal being filed slightly out of time.

The notice of appeal was filed on June 30, 2015, but was 13 days late, necessitating another condonation application. The record of the appeal was due by October 20, 2015, but the appellants' attorney requested extensions multiple times, citing issues with the transcription of trial proceedings.

Despite several extensions, the record was not filed by the final agreed date of December 4, 2015. On December 8, 2015, the registrar notified the parties that the appeal had lapsed due to the failure to file the record. Following the lapse, the respondent's attorney informed his client and began preparing for further steps in the case, including drafting bills of costs and employing expert witnesses to amend the particulars of claim.

The appellants' attorney remained silent for over a year, only breaking the silence on December 15, 2016, when he attempted to file the record and a condonation application. However, the registrar refused to accept the documents due to issues with the record's legibility and the quality of photographs included.

The record and the application for condonation were eventually filed on March 17, 2017, after a series of delays and inadequate explanations for the time taken to resolve the issues with the record.

The appeal was ultimately dismissed with costs due to the extreme delay in filing the record and the unsatisfactory explanations provided by the appellants' attorney, highlighting a lack of urgency and diligence in managing the appeal process.

The ratio decidendi of the case is that an application for condonation and reinstatement of a lapsed appeal will not be granted if the explanation for the delay is inadequate and the delay itself is extreme. The court emphasised that the responsibility for compliance with procedural rules lies with the litigant and their legal representatives. Even if there are reasonable prospects of success on the merits of the appeal, a flagrant disregard for the rules and a lack of urgency in addressing delays can lead to the dismissal of the application for condonation. The court underscored the importance of finality in litigation and the need for parties to be held accountable for the conduct of their attorneys, thereby reinforcing the principle that litigants cannot escape the consequences of their attorney's negligence.

The court relied on several cases in its reasoning process regarding the principles of condonation and the responsibilities of litigants and their attorneys. Notable cases include:

1. Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd & others [2013] ZASCA 5; [2013] 2 All SA 251 (SCA), which discusses factors relevant to the discretion to grant or refuse condonation.

2. Darries v Sheriff, Magistrate’s Court, Wynberg & another 1998 (3) SA 34 (SCA), which elaborates on the necessity of providing an acceptable explanation for non-compliance with court rules.

3. Saloojee & another NNO v Minister of Community Development 1965 (2) SA 135 (A), which addresses the limits of condonation when the delay is due to the negligence of the attorney.

4. Tshivhase Royal Council & another v Tshivhase & another; Tshivhase & another v Tshivhase & another 1992 (4) SA 852 (A), which reiterates that in cases of flagrant breaches of the rules, condonation may be refused regardless of the merits of the appeal.

5. Kgobane & another v Minister of Justice & another 1969 (3) SA 365 (A), which emphasises that an attorney's claim of being too busy to manage a case is not an acceptable explanation for delays.