RAKOW J:
Introduction
The plaintiff in the current matter is Brunette Namasiku Litaba, an adult female currently residing at Mafuta Location in Katima Mulilo. The defendant is her husband, Knoxa Muyambui Luboni who is residing at Erf 2351 Bebi Location, Katima Mulilo. He brings a condonation application for the late filing of his witness statement.
The application
Ms Schickerling appears on behalf of the defendant and she filed the application and founding affidavit. She explained that the plaintiff filed her witness statements on 21 June 2024 as required in terms of the court order dated 10 June 2024. Her offices then forwarded the plaintiff’s witness statements to the defendant and his son, who reside in Windhoek and assisted the defendant with translation and formulation of the responses since he is not English speaking and resides in a remote village in the Zambezi region. The defendant only had sporadic signal and limited email access. The communication is therefore mostly with his son who relays instructions back to them.
On 3 July 2024, Ms Schickerling received instructions from the defendant regarding the plaintiff’s witness statements. Upon reviewing the information they prepared a draft but some of the information provided, necessitated further information and they had to contact their client again on 5 July 2024. They received the requested information only during the week of 9 July 2024 and unfortunately, Ms Schickerling could not immediately attend to it as she was otherwise occupied with two matters in the High Court. She could only attend to the witness statement and settle the papers on 12 July 2024, where after she filed the statement, but it was 5 days late.
She submit that the late filing was not due to any disregard of the rules of the court and that the failure to file in a timely manner was the result of unfortunate sequence of events on her part. She needed to obtain additional information from her client.
Arguments by the parties
On behalf of the defendant it was argued that a party seeking condonation is seeking an indulgence from the court and the court has a discretion. The onus in such an application is on the applicant. An applicant in an application for condonation must show good or sufficient cause for non-compliance and must satisfactorily explain any delay or non-compliance with the Rules of Court in a manner sufficiently full to enable court to understand how it really came about. The prospects of success must be addressed.
It is submitted that the application for relief was made promptly by the defendant. From that date, the application for condonation together with the witness statement was filed merely eight court days later and the defendant’s legal practitioner did not wait for the matter to be in court on 13 August 2024, to then request a filing date for the condonation application. The defendant did not overtly disregard the court rules as confirmed in the founding affidavit. It was considered that no prejudice would be suffered by the plaintiff before the application was filed. Additionally, because the defendant's legal representative promptly sought relief, the plaintiff's legal representative did not incur legal costs for the court appearance on 13 August 2024. On the second ground it is argued that the defendant has satisfactorily explained the failure and is thus entitled to condonation. Although the explanation provided by the defendant’s legal representative may not explicitly address the prospects of success’, it does not negate the fact that the presence or absence of such an allegation is not what determines whether there are indeed prospects. In deciding whether the defendant has prospects, the court will look at the pleadings and the possible evidence intended to be led at the trial, which is contained in the witness statement.
Two main issues remain in dispute. The first is which party is entitled to an order of divorce and the second is the manner of division of the joint estate. But the effect of any order will be that one of the parties will obtain a final order of divorce, and the joint estate would be divided. Those are the prospects for both parties. Those issues stand to be determined at the trial with reference to the issues raised in relation thereto in the pleadings and the court’s assessment of the parties’ evidence in relation thereto. The court will not order how the estate is to be divided but usually order a division of the joint estate. Neither of the parties has sought forfeiture and have merely claimed different manners as to divide the joint estate.
The plaintiff is opposing the application for the following reasons; non-compliance with rule 32(9) and (10), unreasonable explanation for the non-compliance with the court order, hearsay evidence and failure to address prospects of success in the founding papers. It is submitted that this application for condonation for non-compliance with a court order and the late filing of the defendant’s witness statement is an interlocutory application and compliance with rule 32(9) and (10) is peremptory.
It is further submitted that this application was supposed to be filed by the defendant himself and not the defendant’s legal practitioner of record. The practice of legal practitioner’s filing affidavits on behalf of clients has been discouraged by our courts. Only in exceptional circumstances are legal practitioners allowed to file affidavits on behalf of clients. In this matter, there is no exceptional circumstances or grounds for the defendant’s legal practitioner to have filed an affidavit for condonation on behalf of the defendant.
The applicant’s legal practitioners has also not complied with rule 32(9) and (10) at all and at no time did she contact the plaintiff’s legal practitioners. Legal considerations
Applications in general:
‘…In a long line of cases the courts have stated as a general rule that an applicant in motion proceedings must set out his cause of action and supporting evidence in his founding affidavit. It is only in exceptional circumstances that the court will allow an applicant to supplement its allegations in a replying affidavit in order to establish its case. How the court should approach this issue was set out in the case of Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T). At 369 the following was stated by the learned judge:
“It lies, of course, in the discretion of the court in each particular case to decide whether the applicant's founding affidavit contains sufficient allegations for the establishment of his case. Courts do not normally countenance a mere skeleton of a case in the founding affidavit, which skeleton is then sought to be covered in flesh in the replying affidavit.”
[30] In the case of Bowman NO v De Souza Roldao 1988 (4) SA 326 (T), Kirk-Cohen J referring to various other cases, summed up the position as follows (at 327I - J):
‘This type of objection must be considered on the basis of an exception to a declaration or a combined summons. The relevant considerations are: (a) the founding affidavit alone is to be taken into account; (b) the allegations in the founding affidavit must be accepted as established facts; (c) are these allegations, if proved, sufficient to warrant a finding in favour of the applicant?...’
Rule 56(1) prescribes that on application for relief from a sanction imposed or an adverse consequence arising from a failure to comply with a court order the Court will consider the listed grounds, the most pertinent of which are:
Whether the application for relief is made promptly; Whether there is sufficient explanation for the failure; and The extent to which the party in default has complied with other court orders.
In Sash Trading & Earthworks CC v Tsams Construction, Justice Smuts discussed the requirements for condonation as follows:
‘The two-pronged requirement of good cause for a rescission application requires an explanation for the default in not entering an appearance to defend in accordance with the rules plus establishing a defence to the claim. The absence of a proper explanation for the neglect would reflect upon the bona fides of the application. The appellant thus bears the onus in the rescission application to show that it is bona fide and that it has a bona fide defence.’
Lepidico Chemicals Namibia (Pty) Ltd v Ombujomenge Close Corporation, Masuku J stated at paragraph 14 that:
‘The issue raised by the applicant has become trite in this jurisdiction. The main judgment which deals with it is Prosecutor-General v Paulo, where Angula DJP stated the following:’
“I feel obliged to make an observation here that this practice by legal practitioners of filing affidavits on behalf of a client should be discouraged and desisted from. It should only be resorted to in exceptional circumstances where the party to the proceedings is for compelling reasons unable to depose to an affidavit. Such reason must be disclosed in the affidavit deposed to by the legal practitioner.”’
In paragraph 18, Masuku J further stated that:
‘Another issue that needs to be pointed out in this regard and where it may be appropriate for legal practitioners to depose to affidavits, is where the matter at hand is one the legal practitioners are handling and there are certain non-compliances or certain occurrences that take place under their watch. The legal practitioners, in that situation, would be best placed to explain the non-compliance and the client would in that event, not be the appropriate person to deal with the reasons for the non-compliance. In that event, the legal practitioner would then explain that situation and comply with the Paulo imperatives in that regard.’
In QKR Namibia Navachab Gold Mine (Pty) Ltd v Kwala, his Honourable Justice Masuku held that: rule 32(9) and (10) does not apply to matters of condonation because the parties do not resolve any aspect of the interlocutory application. Even after having complied with rule 32(9) and (10), the applicant is still required to file an application for condonation.’
Conclusion
It is not sufficient enough to say that the pleadings will set out the defence in a condonation application. An applicant must clearly meet both the requirements for condonation to wit, setting out a clear explanation for the delay and a bona fide defence or case on the merits. Without those two elements at least dealt with it in some way, condonation applications will not be successful.
It is further true that the applicant did not comply at all with rule 32(9) and (10) and although condonation is at the behest of the court, the parties must still engage in some form of communication. Courts might not be as strict as to demand a meeting, but at least some communication should have taken place although there is case law that says these rules do not apply in condonation applications. This is, however, just said in passing.
For the first reason stated under point [16], in as much as the court has sympathy with Ms Schickerling and her client, her application cannot be successful and the condonation application stands to be dismissed with costs.
In the result, I make the following order:
The condonation application is dismissed with costs, but costs are capped in terms of rule 32(11). Postponed 19/11/2024 for a status hearing.
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