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RULING
DELIVERED BY H. E. JUSTICE ISAAC J. MTAMBO, SC
[1] The application initiating proceedings was issued on June 15, 2009. It
was served on the Respondent on June 22, 2009. In terms of Rule 36(1) of the
Rules of Procedure of the Southern African Development Community (SADC)
Tribunal, hereinafter referred to as the Rules, the period within which the
Respondent was required to have filed a defence is thirty (30) days, which
expired on or about July 22, 2009. On July 13, 2009, the Respondent applied
for an extension of the period. The application was granted. The Respondent
was allowed a further period of sixty (60) days within which to file a
defence. This period was to expire on or about September 21, 2009, in terms
of Rule 84 of the Rules. On September 7, 2009 the Respondent brought an
application for a further extension of the period. On the basis that the
circumstances had not changed warranting further extension, the application
was, on September 30, 2009, refused. Despite this, the Respondent still
filed the first part of a purported defence; this was October 16, and the
second part thereof on November 24, 2009. The Respondent also, on November
24, filed the present application for condonation of the late filing of the
defence.
[2] We think this is a convenient stage at which to refer to the applicable
principles in an application for condonation. In the case of Kodzwa v
Secretary for Health and Another 1991 (1) ZLR 313 (SC), the Supreme Court of
Zimbabwe quoted, with approval, from a textbook on practice and procedure:
Herbstein and Van Winsen’s The Civil Practice of the Supreme Court of South
Africa, the following passage:
“Condonation of the non-observance of the rules is by no means a mere
formality. It is for the applicant to satisfy the court that there is
sufficient cause to excuse him from compliance.
The court’s power to grant relief should not be exercised arbitrarily and
upon the mere asking, but with proper judicial discretion and upon
sufficient and satisfactory grounds being shown by the applicant. In the
determination whether sufficient cause has been shown, the basic principle
is that the court has a discretion, to be exercised judicially upon a
consideration of all the facts, and in essence it is a matter of fairness to
both sides in which the court will endeavour to reach a conclusion that will
be in the best interests of justice. The facts usually weighed by the court
in considering applications for condonation include the degree of
non-compliance, the explanation for it, the importance of the case, the
prospects of success, the respondent’s interest in the finality of his
judgment, the convenience of the court and the avoidance of unnecessary
delay in the administration of justice.
It is, therefore, well established that the court has a discretion to grant
condonation when the principles of justice and fair play demand it, and when
the reasons for non-compliance with the rules have been explained by the
applicant/appellant to the satisfaction of the court.”
[3] This passage was also quoted, with approval, in the case of Willowcreek
Farm (PVT) Limited v Devon Engineering (HC) 289/03 [2004] (25 February
2004), among others.
[4] We have found this passage very instructive. It contains the correct
principles governing the requirement for the grant or refusal of condonation.
A court has a discretion which it has to exercise judicially and according
to established principles of law, not the caprice of an individual judge; a
court has to take into account all the facts which are before it. It has to
consider: (a) the degree of lateness or non-compliance with the prescribed
time frame; (b) the explanation for the lateness or non-compliance with time
frame; (c) the prospects of success or bona fide defence in the main case;
(d) the importance of the case; (e) the Respondent’s interest in the
finality of the judgment; (f) the convenience of the court, and (g) the
avoidance of unnecessary delay in the administration of justice – see
Forster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).
[5] In deciding this application, we will bear in mind that these factors
are not individually decisive; they are interrelated and must be weighed
against each other. We will also take into account that a good explanation
for lateness or failure to comply with the time frame is shown by giving a
reasonable explanation that shows how and why the default occurred, and that
if it appears to us that the default was willful or was due to gross
negligence on the part of the Respondent, we should decline the granting of
condonation. Regarding the prospects of success or bona fide defence, we
will bear in mind that all that needs to be shown is the likelihood or
chance of success when the main case is heard – see Sareiva Construction
(Pty) Ltd v Zulu Electrical Engineering Wholesalers (Pty) Ltd 1975 (1) SA
612 (D) and Chetty v Law Society (1985) (2) SA at page 765 A-C.
[6] We must now apply the above principles to the circumstances of the
present application regarding the length or any negligence attached to the
delay, and the public importance of the case.
[7] The Respondent has informed us that a period of nearly nine years had
elapsed, after the matter was concluded in the Court of Appeal (the highest
court) of the Respondent, before the filing of the application in the main
case; that the trial itself, in the High Court, lasted some sixty-four court
days spreading over nearly three years, i.e. from May 1996 to April 1999;
that the Respondent is faced with a very lengthy application in the main
case with prayers taking some 12 pages, the statement of claim stretching
over 541 pages (based on 2030 pages of evidentiary material annexed
thereto), and referring also to approximately 35,000 pages of additional
documents, with an indication that copies of the entire record of
proceedings in the municipal courts as well as the bundle of documents
exceeding 20 000 pages would be placed before the Tribunal, if it should
become necessary. The Respondent, therefore, submitted that the briefest
consideration of only those papers filed makes it clear that an adequate
defence could not be formulated within the 30 days prescribed by the Rules
of the Tribunal. Faced with such a time limit, the Respondent approached the
Tribunal for an extension of the time in which to file its defence; sixty
days were granted, as we have mentioned above.
[8] When, towards the expiry of the extended period, it became apparent to
the Respondent that it was impossible to file an adequate defence within the
time allowed, an application for a further extension was immediately made.
The application was refused, as we have said above, whereupon the Respondent
filed the part of the defence which had already been formulated, albeit
outside the period allowed. The remaining part of the defence was filed on
November 24, as we have already indicated.
[9] The Respondent has also submitted that the matter is of considerable
public importance in that the amount of money involved is very substantial
in relation to the size of the economy of the Respondent; the claim amounts
to more than ZAR 1324 million. The Respondent has, therefore, argued that it
would be wrong not to allow it to be heard, having shown the desire to be
heard, notwithstanding that it has not acted within the time limits.
[10] The Applicants oppose the application. They contend mainly that the
Respondent’s failure to meet the extended deadline was caused by the same
circumstances that had already been earlier considered, namely, the length
and nature of the applicant’s case, and that the events spanned many years
[11] We bear in mind that the standard for considering an application for
condonation is the interest of justice and that whether it is in the
interest of justice to grant condonation depends on the facts and
circumstances of each case. The circumstances that are relevant in this
application are the extent and cause of the delay, the nature of the relief
sought and the importance of the matters raised in the main case. In this
connection, we have had to consider the length of the interval (nine years)
between the time of the conclusion of the matter in the municipal court and
its resuscitation in the Tribunal, which meant that the Respondent was faced
with having to answer factual allegations stretching back that long period
in some ninety days. We have also had to consider the size of the record. We
have had to consider the manner in which the Respondent has approached the
whole matter; it has shown the desire to be heard and the wish to comply
with the prescribed time limits, it has promptly taken steps whenever it
appeared that it would not be possible to do so. In the circumstances, we
are of the view that the Respondent’s explanation for late filing of the
defence is reasonable and excusable, and that it is without any negligence
on its part.
[12] We have also examined the Respondent’s defence and have considered the
public importance of the matter from the point of view of the large amounts
of money involved. We are of the opinion that it would only be fair and
proper that the Respondent be accorded the opportunity to be heard on the
allegations upon which the Applicants rely in the main case.
[13] In the result, we hold that the Respondent has shown sufficient cause
to be excused from compliance and that it is, in the circumstances, in the
best interest of justice that the application to condone the late filing of
the defence be allowed, and it is, therefore, hereby granted.
[14] We make no order at this stage as to costs.
Delivered in open court this 11th day of June 2010, at Windhoek in the
Republic of Namibia.
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