Court shuts down Khakhala community bid to revive withdrawn appeal

The Limpopo High Court has dismissed an attempt by the Khakhala Traditional Community and two other appellants to revive an appeal they had withdrawn more than two years earlier, ruling that they failed to provide a satisfactory explanation for the prolonged inactivity.


The judgment, delivered on 3 September 2026 by Acting Judge T.M. Malatji, with Judges Naude‑Odendaal and Pillay concurring, concerned an application for condonation and reinstatement of an appeal arising from a judgment handed down by Semenya DJP on 3 August 2021.

The appellants were granted leave to appeal on 30 May 2022, but the matter was struck from the roll with costs on 14 October 2022. It was re‑enrolled for hearing on 12 May 2023, but before arguments could be heard, the appellants withdrew the appeal. They did not seek an order preserving their rights or approach the court for permission to revive the matter until October 2025.

The court said the case raised questions about whether Rule 49(6)(b) of the Uniform Rules of Court could be used to revive an appeal that had been expressly withdrawn rather than one that had lapsed due to procedural non‑compliance. The respondents — Hosi Mkhacani Kenneth Shiviti, the Shiviti Traditional Council and the Shiviti Traditional Community — argued that the appellants had voluntarily terminated the appeal and could not rely on a rule intended for lapsed matters.

The court avoided making a final determination on that legal question. “We assumed, without deciding, that this Court may in an appropriate case invoke that rule, alternatively the Court’s inherent power under section 173 of the Constitution to regulate its own process, to revive an appeal that was previously withdrawn,” Malatji AJ said. But the court stressed that the power was discretionary and depended on the appellants establishing good cause.

Central to the judgment was the appellants’ explanation for the delay. They blamed three successive sets of former attorneys for negligence, delays and misleading advice, while a fourth firm eventually brought the reinstatement application. The court found the explanation incomplete and lacking a coherent chronology. “The founding papers did not provide a complete chronology,” the court said.

The appellants failed to specify instructions given to each firm, when files were transferred, when progress reports were requested, what responses were received and when they became aware of the withdrawal. They also failed to explain why they did not terminate mandates sooner or approach the court once problems became apparent.

The circumstances surrounding the withdrawal of the appeal particularly troubled the court. The appellants claimed their former attorney advised that the appeal had become moot because the underlying review application had been withdrawn. The court said this explanation “raised more questions than it answered”, noting that the appellants did not demand sight of the formal notice of withdrawal — a basic step that would have confirmed or disproved the attorney’s advice.

The judges criticised the absence of contemporaneous documentation, including correspondence, instructions and enquiries about progress. They stressed that while courts may hesitate to punish litigants for every failure by their lawyers, litigants cannot escape responsibility indefinitely. “A litigant who knows that a prescribed period has expired cannot simply entrust the matter to an attorney, remain passive in the face of a manifestly protracted delay, and then expect complete absolution,” the court said.

The appellants’ status as a traditional community was relevant but did not exempt them from compliance with court rules. They provided no evidence of structural or governance difficulties that might explain the delays.

The court said the previous granting of leave to appeal did not rescue the application. Leave indicated the appeal was arguable, but did not excuse subsequent procedural failures or create an indefinite right to prosecute an appeal. “It did not establish prospects of such strength as to overcome the cumulative deficiencies in the application,” the court ruled.

The judges also considered the respondents’ interest in finality. The appeal had already occupied two hearing dates before being struck from the roll and later withdrawn. Reviving it after more than two years without a compelling explanation would undermine procedural discipline and the efficient functioning of the courts. “Fairness should operate in both directions,” the court said.

Ultimately, the court found that the appellants had failed to establish good cause. “The delay was extreme. The explanation was general, incomplete and insufficiently linked to a coherent chronology,” the judgment states. The application for condonation and reinstatement was dismissed.

However, the court made no order as to costs, noting that the respondents had opposed the application from the bar without filing an answering affidavit addressing the factual basis for condonation.

The judgment emphasised that the dismissal did not determine the merits of the underlying appeal. “Nothing in this judgment determines the merits of the underlying appeal nor does it express a view on whether the appellants’ former attorneys were negligent or not,” the court said.

This ruling adds to ongoing discussions around appeal reinstatement standards and litigant responsibility.