Having heard MS PAULUS, on behalf of the Plaintiff(s) and MR LINDE, on behalf of the Defendant(s) and having read the pleadings for HC-MD-CIV-ACT-CON-2020/00360 and other documents filed of record:
IT IS HEREBY ORDERED THAT:
1. The application for condonation is granted.
2. The automatic bar for non-compliance with the court order dated 11 August 2020 is uplifted.
3. The defendant’s plea and counterclaim dated 30 September 2020 are accepted as filed.
4. The applicant to pay the cost of the application, which include the costs of one instructing and one instructed counsel. Such costs to be limited to rule 32(11).
Further conduct of the matter:
5. The plaintiff is ordered to file its plea to the counterclaim and replication to plea, if any, on or before 2 March 2021.
6. The defendant must file his replication to the plea to the counterclaim, if any, on or before 16 March 2021.
7. Parties to file their respective discovery affidavits and exchange their discovery bundles on or before 30 March 2021.
8. The case is postponed to 08/04/2021 at 15:00 for Case Management Conference hearing (Reason: Parties to file case management conference report).
9. Joint case management report must be filed on or before 5 April 2021.
Introduction and brief background
- The matter before me is an application for condonation by the defendant for failing to file his plea and counterclaim by the date directed by this court.
- The applicant and the respondent are the defendant and the plaintiff respectively in the main action and for the sake of convenience I will refer to the parties as they are in the main action.
Application for condonation and opposition
- In his notice of motion the defendant prays for, inter alia, condonation for his non-compliance with the court order dated 11 August 2020 in failing to file his plea and counterclaim by 28 August 2020; an upliftment of the bar and leave to file his plea and counterclaim (“pleadings”) which he already filed on 5 October 2020.
- The notice of motion is supported by affidavits deposed to by the defendant and one of his legal practitioners of record, Mr Rohann Linde.
- What follows is an account of the events set forth in the defendant’s founding affidavit which culminated in the application before me.
- During the week of 17 August 2020 and up to 21 August 2020, defendant’s instructed counsel Mr Strydom, was inundated with work on instruction of various legal practitioners. Plaintiff’s legal practitioners of record, Messrs Linde and Louw, were also preoccupied with work, having had case management appearances from 17 to 19 August 2020. As such, the earliest opportunity that the defendant’s legal practitioners had to brief counsel was on 25 August 2020, three days prior to the deadline set by this court.
- It happened that during the aforesaid consultation with Mr Strydom, Mr Linde received news that he may have contracted COVID-19 as a friend whom he had been in contact with had tested positive for the virus.
- Pursuant to receiving this information Mr Linde was directed to work from home pending his COVID-19 test results, which came to be positive. Likewise, Messrs Strydom and Louw were also directed to go into self-isolation pending the outcome of their test results. These circumstances, coupled with counsel having to attend to trial during the week of 31 August 2020, resulted in counsel being unable to consult with client towards the preparation of his pleadings.
- The defendant goes on to state that on 28 August 2020 Mr Linde advised the plaintiff’s legal practitioner that they were not in a position to file his pleadings by the aforementioned date and sought to resolve the need to apply for condonation. The plaintiff’s legal practitioner replied on 11 September 2020 advising him that he was in fact barred from filing his pleadings and that the plaintiff was not in a position to grant him permission to file his pleadings.
- The defendant avers that the resultant effect of the aforesaid was that the earliest opportunity to consult counsel was on 14 September 2020, during which consultation it transpired that further consultations with witnesses had to be held, which subsequently took place on 23 and 25 September 2020.
- The defendant’s contention is that COVID-19 is the sole culprit responsible for his delay in settling and filing his pleadings.
- Insofar as the merits of his defence are concerned, the defendant referred to his plea (which was attached to his application papers), submitting that same clearly set out a defence and forms a basis for the damages claimed in his counterclaim against the plaintiff.
- In response to the plaintiff’s points in limine raised in its notice of opposition, the defendant submits that he complied with the time limits set by the court in bringing his application for condonation and as such there was no undue delay in bringing the current application. Furthermore, the defendant had shown good cause both in respect of the explanation proffered for his non-compliance and the merits of his defence.
- Plaintiff opposed the application in terms of rule 66(1)(c), raising the following points in limine:
‘1. With reference to the facts stated under oath, whether the applicant delayed the institution of the application for condonation and if answered in the affirmative;
2. whether the absence of any explanation as to the referenced delay in instituting the application renders the application subject to refusal, and in either event;
3. whether the applicant has demonstrated good cause for condoning his failure to comply with the order of this Honourable Court issued on 11 August 2020.’
- Both parties submitted written arguments for this court’s consideration and substantiated same with oral arguments.
Arguments on behalf of the defendant
- Mr Strydom, on behalf of the defendant, argued that in any application for condonation an applicant had to show good cause, which entailed an explanation for the default and showing that the case is not without merit.
- With regards to the requirement for merit, Mr Strydom submitted that since plaintiff had contested neither the defendant’s plea nor its counterclaim in his opposition to the application, it stood that defendant had met this requirement regarding merit.
- The defendant’s explanation for failing to file its pleadings on time was as a result of his instructing counsel contracting COVID-19. In response to the question raised by the plaintiff as to why the defendant had waited until 25 August 2020 to consult with counsel, he referred to the explanation in para 3 of the defendant’s founding affidavit as to what had transpired prior to the consultation of 25 August 2020 (refer to para  above).
- In calculating the period of delay, Mr Strydom urged this court to only consider the period from when the defendant had failed to file his pleadings to when said pleadings were sent to the plaintiff on 5 October 2020. The delay was therefore a period of approximately five weeks.
- He submitted plaintiff had fully explained the delay and the knock-on effect of counsel having to go into isolation and that such explanation had remained uncontested by the plaintiff. He further submitted that the whole incident giving rise to the application relates to defendant’s counsel and that there was no remissness on the part of the defendant himself.
- In considering whether any prejudice had been suffered as a result of the delay, Mr Strydom requested the court to consider status of the case at the time of delay. On 28 August 2020 pleadings had not yet closed, there had been neither case management - nor pre-trial hearings scheduled, nor had there been allocation for trial dates. Unless the plaintiff could say that due to the delay the administration of justice had been impaired, it could not be said that any prejudice had been suffered. A delay does not automatically equate to prejudice and one must consider the consequences which flow from prejudice. Prejudice had not been raised as an issue by the plaintiff as it had not filed any answering papers to the defendant’s application. As prejudice is a factual inquiry and no facts had been placed before the court by the plaintiff, it stood to reason that no prejudice had been suffered by the plaintiff.
- Mr Strydom countered the plaintiff’s argument that the defendant should have launched an application for condonation as soon as it became aware of its non-compliance, by stating that in terms of rule 32(4) it was up to the court to give directions in interlocutory matters and the litigants did not have a say in determining the procedure in any interlocutory proceedings.
- Mr Strydom advised the court that in cases where parties engaged in terms of rule 32(9) and there was no opposition to the pleadings, it had become custom to file a rule 32(10) report advising the court that the parties had reached agreement regarding non-compliance. In an effort to curtail further delays and unnecessary costs the court was then prone to grant compliance and deal with the further exchange of pleadings.
- In conclusion, Mr Strydom referred to defendant’s notice of motion wherein the defendant prays for costs only in the event of opposition as is the case before this court.
Arguments on behalf of the plaintiff
- Counsel for the plaintiff, Mr Diedericks, confirmed that the plaintiff had not contested the facts averred by the defendant. Instead, in opposition it had raised questions with reference to the facts averred by the defendant, which facts fell within the defendant’s peculiar knowledge.
- Mr Diedericks asserted that where there has been non-compliance by a party, rule 54(2) does not allow the parties to come to an agreement regarding such non-compliance, as the defaulting party is ipso facto barred. He continued by stating that in cases such as the present one, rule 32(9) has a limited purpose directed at curtailing costs.
- In considering the aspect of delay, the question was not how long it took for the defendant to file its plea, but rather how long it took the defendant to take steps to permissibly get back in the doors of the court from the time that he realised his non-compliance.
- Mr Diedericks contended that no explanation had been offered as to why it took the defendant almost two months before the condonation application had been filed. The defendant had failed to explain why it had filed its application only after being encouraged by this court to do so by court order, as the rules permit a party bringing such an application without
- Mr Diedericks submitted that it was unnecessary for the plaintiff to file papers with facts alleging that prejudice had been suffered. The court merely had to look at the character of the case to see that prejudice had indeed been suffered. The subject matter of the case (livestock) was being diminished as the defendant in its papers had submitted that he was selling the livestock to cater for his maintenance costs. Therefore, the very things that the plaintiff claims are disappearing. It is on that basis that the plaintiff is suffering prejudice as a result of the delay in proceedings.
Legal principles and application of the law to the facts
- The legal principles regarding applications have been rehearsed often enough and I will not repeat them here, save to state that an applicant for condonation is required to:
(a) satisfy the court that he or she has reasonable explanation for his/her default, and
(b) show the court that he or she has reasonable prospects of success on the merits of the case and a bona fide defence.
- This court empathises with Mr Linde who contracted COVID-19 and appreciates the inconveniences caused by the proverbial wrench that COVID-19 often throws into court proceedings.
- That being said, based on the facts presented by the defendant in its founding affidavit, namely that counsel was briefed three days prior to the deadline; that counsel had a trial the following week for which he presumably had to prepare; and that in order to finalise the plea and counterclaim further consultations would have to be held with witnesses, I find it highly unlikely that defendant would have drafted and filed his pleadings by 28 August 2020. Surely counsel would (or should) have also considered the unlikelihood of being able to meet this court’s deadline and in that case should have taken the appropriate steps to seek an extension in terms of rule 55.
- The defendant’s counsel submitted that the defendant’s reasons for seeking condonation for his conduct more than a month after his default was that he was waiting for the court’s direction. By making this submission it appears that the defendant is attempting to pass the proverbial buck of responsibility to the court. Condonation for non-compliance must be sought by the party in default as soon as the non-compliance has come to the fore. An application for condonation must be made without delay by such party.
- The court noted the defendant’s invitation to have regard to his plea and counterclaim in considering the merits of his defence, having attached the pleadings to its application. The court of course did not consider the pleadings as it cannot take cognizance of pleadings which are not properly before it. The court is however satisfied with that the applicant has set forth a bona fide defence in its founding affidavit.
- The defendant seeks an indulgence and should pay the costs of the application. In Meyers v Abramson the court stated that it is neither reasonable nor fair for the opponent in an application for an indulgence to be put in a position that he opposes the granting of such indulgence at his peril as the applicant in this application attempted to do by requesting a costs order against the respondent only if it opposed the application.
- The court in Myers then added that:
‘It seems to me that the applicant for the indulgence should pay all such costs as can reasonably be said to be wasted because of the application; these costs to include the costs of such opposition as is in the circumstances reasonable, and not vexatious or frivolous.’
- The opposition of the application was neither frivolous nor vexatious. I therefore find no reason to deviate from the general practice regarding costs.
- My order is therefor as set out above.