Excerpt from Supreme Court Reports, 1899, Vol. 14: Decisions of the Supreme Court of the Cape of Good
Sheil, Acting A.G. (with him Schreiner, Q.C.), for applicants: Judgment was delivered in March, 1895, and leave to appeal was obtained, and the recognisance entered into within the three months, as required by Rule of Court 38, bnt there has been an unreasonable delay in prosecuting the appeal. The object of Rule 38 is twofold: (1). That the appeal should be duly prosecuted, and (2), that the costs of appeal be secured. There is no mention in our Rules of Court, or P. C. Rules, as to any time being fixed for the prosecution of appeals. The practice in the Registrar"s Office is not to send transcript of case to Privy Council, as required under Privy Council Rules (No. 2) (see Tennant"s Buies of Court, p. 225, 3rd edition), until the necessary stamps and fees are paid by appellant. These have not been paid in this case, and therefore the transcript has not been sent. There is thus nothing before the Privy Council, and the case is still in this Court. If the case is once on Privy Council roll, it must be prosecuted within six months. (Rule 5 of Privy Council, p. 227, of Tennant"s Buies of Court.)
The Court has therefore clearly jurisdiction to stop the appeal on account of unreasonable delay. Morrison vs. Anderson & Stenhouse (1 Menz. 527). That was under the old Charter.
[De Villiers, C.J.: Clearly the Privy Council has jurisdiction in such a case. The question is whether this Court also has jurisdiction to recall the leave to appeal.]
I submit it has. Leave to appeal was given under sect. 50 of the Charter of Justice, conditionally on compliance with all our Rules of Court to prosecute the appeal timeously.
Innes, Q.C. (with him Graham), for respondents: Sect 50 of the Charter of Justice settles the conditions of appeal to the Privy Council. This Court can only withdraw the leave to appeal if security for costs is not given in three months (Rule of Court, 38). De Montmort vs. Board of Executors (4 Juta, p. 61).
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