The plaintiff's interlocutory application for leave to file a supplementary discovery

9. The main purpose of the plaintiff’s application for supplementary discovery concerns the defendants' bank statements, which show that N$3.9 million was deposited from 01 December 2022 until 30 March 2023.

10. The plaintiff delivered a notice to the defendants under rule 28(8)(a) to obtain the aforementioned bank statements. The first defendant indicated that he was not in possession of the statements and did not understand why the plaintiff wanted them discovered.

11. The plaintiff's legal practitioner then obtained the bank statements from the Namibian Police, who obtained the documents with a court order, presumably during the course of their investigation. It is alleged that these documents were not available to the plaintiff at the time of filing his discovery affidavit.

12. According to the plaintiff, he would suffer severe prejudice should the court refuse to grant him leave to file his supplementary discovery affidavit which includes the first defendant’s bank statements. He contended that the bank statements will detail the transfer and payments made in respect of the transfer of the N$3.9 million Namibian Dollars into the bank account of the first defendant and will further detail the account number, the transfer and the payments made from the account regarding the N$1.5 million repaid to the plaintiff by the first defendant.

13. The application for leave to file the supplementary discovery affidavit cannot be considered unless the court determines the second and third applications, which relate to condonation and rule 61 proceedings.

Irregular proceedings

14. The defendants brought the irregular proceedings application, which ties in with the condonation application, which I will deal with hereunder.

15. It is the defendants’ complaint that the plaintiff failed to seek condonation before filing the application for leave to file supplementary discovery. In addition, the plaintiff’s condonation application was delivered after the rule 61 application was launched.

16. Rule 61 of the High Court Rules provides that:

’61. (4) If at the hearing of the application the managing judge is of the opinion that the proceeding or step is irregular or improper he or she may, with due regard to the alleged prejudice suffered, set it aside in whole or in part either as against all the parties or as against some of them and grant leave to amend or make any other order that the court considers suitable or appropriate.

(5) A party that has not complied with an order of court made against him or her in terms of this rule is not entitled to take any further step in the cause or matter, except to apply for an extension of time within which to comply with the order.’

17. Rule 61 consists of two aspects, these aspects were clearly set out in the Supreme Court case of Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd,¹ where the Court dealt with the provisions in question, albeit under the old rules. The court held that:

‘Rule 30² contemplates two separate but interrelated enquiries, which should not be conflated. The first is whether the step or proceeding complained of is irregular. The answer to this question must be determined by considering the step itself in the light of the meaning of an irregular step or proceeding. The second enquiry, which only arises once it is established that the step complained of is irregular, is what order should follow the finding of an irregularity. In this enquiry, the court has a discretion whether or not to overlook the irregularity. It is in this enquiry that prejudice is relevant.’ (emphasis added)

18. In Freedom Square (Pty) Ltd v The Social Security Commission,³ the court stated:

‘The purpose of rule 61 is to enable a party to a cause to apply to set aside a step or proceeding taken by the other party as an irregular step or proceeding if it is also prejudicial to that party. The procedure affords a party an opportunity to compel its opponent to comply with the rules of court on pain of having the said irregular step set aside. The object of the rule is therefore to provide a procedure whereby a hindrance to the further conduct of the litigation, whether created by non-observance of what the rules of court intended or otherwise, is removed.’

19. The late filing of the application for leave without seeking condonation can possibly be argued to be regarded as an irregular step, although doubtful. However, this court can exercise its discretion, and since the defendants suffered no prejudice, it could be overlooked as an irregularity. The court must guard against falling into the trap of technicalities, and common sense must prevail. Therefore, even where it is established that a step or process is irregular, it will not be set aside if the objector does not establish prejudice.

20. In my view, the rule 61 application has no merits. The plaintiff's actions were not irregular, and if they were, the defendants suffered no prejudice. The application, in terms of rule 61, is therefore dismissed with costs.

Condonation application

21. The court order dated 25 July 2024 directed the plaintiff to file his application for leave to file the supplementary discovery affidavit on or before 1 August 2024. He failed to comply with this direction as the application was only filed on the evening of 6 August 2024.

22. The plaintiff explained that his legal practitioner Ms Gebhardt, travelled to Livingstone, Zambia, to attend the SADC Lawyers Association’s General Meeting and Annual Conference, which was held from 28 July 2024 to 2 August 2024. Due to technical difficulties with her laptop, she was unable to finalise the application's drafting and was only able to file it upon her return to Namibia.

23. The application was opposed on the basis that it was filed despite being well aware that the plaintiff was in non-compliance with the court order by 1 August 2024. When the application was filed, it was not accompanied by an application for condonation.

24. The respondents argue that the application for condonation falls short of the requirements needed for the court to condone the plaintiff’s non-compliance. The plaintiff filed the application almost one month after the non-compliance occurred without explaining why he did not seek condonation as soon as the non-compliance occurred. The defendants submitted that the plaintiff would suffer no prejudice if the main application is not granted as the issue of the amounts of money has been canvassed in the pleadings, and there is no dispute regarding the amounts. It is just the purpose and the pretext under which the money was received.

25. The principles applicable with respect to condonation are trite, and it is expected that the applicant must, in an application for condonation, have a full explanation for the delay. In addition, the explanation must cover the entire period of delay. What is more, the explanation given must be reasonable. Prejudice and reasons for the delay would be factors to be considered in deciding what an appropriate remedy is in the circumstances.

26. The principles were restated in Prosecutor–General v Paulo and Another,⁴ which relied on Telecom Namibia Ltd v Nangolo and Others.⁵ The first principle is that an application for condonation must be brought as soon as the non-compliance has been detected. Second, there is some interplay between the obligation to provide a reasonable and acceptable explanation for the non-compliance of a rule of court and the reasonable prospects of success in the main action.⁶

27. In this regard, I consider the application's lateness in filing, in casu, to be insignificant and did not cause the defendants any prejudice. Although the overall objective of the case management system is to expedite the machinery of pleadings and, ultimately, the proceedings as a whole, there will always be some cases where delays are experienced for a variety of reasons. To adopt an implausible rigid attitude may lead to situations where a litigating party is prevented from fairly ventilating his or her case.⁷

28. I accept that there will be cases where a litigant's negligence or carelessness is so severe that the court will not assist, this case does not strike me as one of those.

29. It would appear that the defendant's biggest qualm is the period between filing and bringing the condonation application. Although the explanation given for the delay is not perfect, it is nonetheless reasonable and acceptable.

30. To satisfy the element of prospects of success in the main case the plaintiff need not fully deal with the merits. It is sufficient to show that a prima facie case exists. I am satisfied that this was done. Condonation can thus be granted.

Costs

31. There is no reason why the costs should not follow the outcome of the rule 61 application. Such costs should be limited in terms of rule 32(11).

32. The plaintiff is seeking an indulgence from this court and has tendered costs for the condonation application. These costs will also be limited in terms of rule 32(11).

Order

33. My order is as follows:

Under interlocutory application INT-HC-OTH-2024/00667

1. The Rule 61 application is dismissed with costs.

2. Costs are limited in terms of rule 32(11).

Under interlocutory application INT-HC-UPLIFBAR-2024/00622

1. The applicant’s late filing of his application for leave to file a supplementary discovery affidavit is condoned, and the applicable bar thereon is uplifted.

2. The time limit for filing the applicant’s application for supplementary discovery affidavit has been extended to 07 August 2024.

3. The applicant is liable for the costs of this application limited to rule 32(11).

Under interlocutory application INT-HC-OTH-2024/00517

1. The case is postponed to 15 November 2024 at 08:30 for Interlocutory hearing (Reason: Hearing).

2. The respondents must file their answering affidavit on or before 21 October 2024;

3. The applicant must file his replying affidavit, if so advised, on or before 31 October 2024.

4. Notes on argument to be filed as follows:

4.1 applicant must file on or before 8 November 2024;

4.2 respondents must file on or before 13 November 2024.

___________________

J S PRINSLOO

Judge

APPEARANCES:

PLAINTIFF: I S GEBHARDT

Of Ileni Gebhardt & Co. Inc.,

Okahandja

DEFENDANT: M SIYOMUNJI

Of Siyomunji Law Chambers,

Windhoek