S v S (I 2985 /2013) [2015] NAHCMD 93 (22 April 2015);

Group

Full judgment

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT



In the matter between:

Case no: I 1860/2014

DATE: 23 MARCH 2015

NOT REPORTABLE


I A BELL EQUIPMENT CO NAMIBIA (PTY) LTD........................................................PLAINTIFF



And



E S SMITH CONCRETE INDUSTRIES CC.................................................................DEFENDANT


Neutral citation: IA Bell Equipment Co Namibia (Pty) Ltd v ES Smith Concrete Industries CC (I 1860/2014) [2015] NAHCMD 68 (23 March 2015)

CORAM: MASUKU A.J.

Heard: 6 March 2015

Delivered: 23 March 2015

Flynote: The applicant brought an application for condonation of the late filing of a plea and counterclaim. The court considered the requirements for success in such applications and held that an applicant must explain the delay on affidavit and also show that they have a bona fide defence to such claim. The court held that the delay of three months was in the circumstances unconscionable and had not in any event, been adequately explained. Further, the court found that there was no bona fide defence alleged or disclosed in the papers. The duties imposed by the rules on legal practitioners in relation to case management were revisited. The court further held that there is a limit beyond which a client can escape the lack of diligence of its attorney. The court also cautioned against attorneys arguing cases in which they are witnesses as it compromises their ethical duties to the court. The application was dismissed with costs.

ORDER


(1) The application for condonation is hereby dismissed with costs.


(2) The applicant is ordered to pay wasted costs of the application which include costs of the opposition, which is ordered to include costs of one instructing and instructed counsel.


JUDGMENT


MASUKU A.J.:


[1] This is an opposed interlocutory application essentially for the uplifting of a bar and enabling the defendant to enter its plea and counterclaim. In its notice of motion, the defendant prays for an order:

(a) Uplifting the bar on the applicant for the late filing of its plea and counterclaim;

(b) Allowing the plea and counterclaim of the Applicant attached to this application;

(c) Extending the period for the respondent’s filing of its plea to the counterclaim, if any, to 13 February 2015;

(d) In the event that the Applicant wishes to replicate to the plea to the counterclaim, if any, such replication shall be filed on or before 20 February 2015.

(e) Extending the period for discovery to 27 February 2015.

The notice of motion is accompanied by the affidavit of the applicant/defendant’s attorney of record Ms. Marianne Christine Petherbridge.


[2] Briefly stated, the facts giving rise to the present bout of proceedings is the following: The plaintiff sued out a summons claiming payment of an amount of N$66 490, 93, interest thereon and costs. The defendant, as it was entitled to, entered its appearance to defend, thus attracting the application of the rules relating to judicial case management.


[3] The case management proceedings were presided over by Mr. Justice Smuts. A joint case plan was filed by the parties in terms of which they agreed that the applicant/defendant was to file its plea and counterclaim on or before 27 October 2014. Importantly, this case plan was on 17 September 2014 adopted and made an order of court by Mr. Justice Smuts. There is accordingly no dispute that the applicant/defendant is in default having not complied therewith, hence the present application.


[4] I should state at the outset that in opposition to the application, the respondent’s attorneys raised points in limine, in terms of which they prayed that the application be dismissed with costs, without even venturing into the substance of the main issues. The one issue raised was the non-compliance by the applicant with the provisions of rule 131 (6), relating to indexing of the relevant papers. The other issue related to the applicant allegedly failing to file the heads of argument timeously. Ms. Campbell, however had a change of heart and did not pursue these issues, which the applicant’s attorneys admitted were not fully complied with by her firm. She claimed substantial compliance however. I shall not say anything more regarding the points in limine because these were abandoned during the hearing.


[5] Applications of this nature, are governed by the provisions of rule 55 (1)[1]. The said provision entitled “Upliftment of bar, extension of time, relaxation or condonation”, reads as follows:

The court or the managing judge may, on application on notice to every party and on good cause shown, make an order extending or shortening a time prescribed by these rules or an order of court for the doing of an act or taking any step in connection with proceedings of any nature whatsoever, on such terms as the court or managing judge considers appropriate”.

I shall in due course advert to the arguments made by the respective parties on the applicable rule in the present scenario. What cannot be doubted, in view of the rendering of the above provision is that the court exercises a discretion in abridging the time limits set out in the rules or by an order of court. Secondly, it is clear that for the court or managing judge to exercise the discretion in favour of a party, that party must, on notice, accompanied by an affidavit, show good cause as to why the court should extend or shorten the time limits in issue. In other words, the application for extension or shortening of the time cannot be granted merely for the asking.


[6] The logical question, that follows from the foregoing paragraph, particularly in relation to the nomenclature employed in rule 55 (1) is what is meant by the words “good cause”? In Smith N.O. v Brummer[2] the court dealt with the relevant considerations that inform the court on whether an application for removal of bar should be granted and these were said to be the following[3]:

In an application for the removal of bar the Court has a wide discretion which it will exercise in accordance with the circumstances of each case. The tendency of the Court is to grant such an application where (a) the applicant has given a reasonable explanation for his delay; (b) the application is bona fide and not made with the object of delaying the opposite party’s claim; (c) there has not been a reckless or intentional disregard of the Rules of Court; (d) the applicant’s application is not ill-founded and (e) any prejudice caused to the other party could be compensated for by an appropriate order s to costs. The absence of one or more of these circumstances might result in the application being refused. Where the delay in filing the pleading is due to the negligence of applicant’s attorney, the Court will not on that ground refuse the application. It will refuse it where the negligence or inattentiveness is, in the opinion of the Court, of so gross a nature that, having regard to the other circumstances, the applicant is not entitled to the indulgence prayed for.” 


[7] I should point out in passing that Ms. Petherbridge, in argument, submitted that the rule that governs the present application is rule 54. This rule is headed “Sanctions for non-compliance in absence of defaulting party obtaining relief, relaxation, extension or condonation”. In my view, the relevant rule to the present case, is sub-rule (3) thereof, which states that a party, in the applicant’s position is by the very act of failing to file the pleading in question, barred. To uplift the bar, one has to have regard to and comply with the provisions of rule 55, rule 54 not providing a panacea in that regard.


[8] I am accordingly constrained not to agree that where a party is ipso facto barred from pleading, it should approach the court in terms of rule 54 to have the bar uplifted. That is simply incorrect and finds no support in the wording of the rules. The fact that she has quoted the wrong rule, should not, in my judgment, prevent me from looking at the correct rule and ascertaining, from the allegations made in the affidavit, in the attempt to provide a reasonable explanation for the delay, whether a case has been made out for the upliftment of the bar. This is what I will consider in due course, having regard to the requisites stated in the Smith case (supra).


[9] I should point out that from the requirements set out in the Smith case, two cardinal requirements have emerged and crystallised from local jurisprudence that should guide the court in determining whether or not to exercise its discretion in an applicant’s favour. These were set out in Hange and Others v Orman[4] and also in Solomon v De Klerk.[5] First, the applicant must file an affidavit explaining satisfactorily the non-compliance with the rules. This explanation, it was stated, must enable the court to fully understand how the delay came about. In this regard, it would appear to me that the affidavit must not be laconic but must contain a blow by blow account as it were, of how the delay was incurred. Where there is a flagrant breach of the rules of court in more than one respect, and particularly where there is in addition, no acceptable explanation, of some periods of the delay and in respect of others, no explanation at all, an applicant should not be granted condonation, regardless of the brightness of the prospects of success.


[10] Second, the applicant should satisfy the court on oath that it has a bona fide defence to the action and same is not ill-founded. In this regard, the applicant must set out facts that demonstrate that the defence is not patently unfounded but which would, if proved, constitute a defence. These requirements, it must be stressed, must be satisfied seriatim and failure to satisfy one may lead to the application being refused.[6]


[11] It now behoves me to consider the explanation proffered by the applicant in order to decide whether the requirements set out above have been met by the applicant herein. The applicant acknowledges that there was an order issued by the court on 13 October, 2014 for it to file its plea on or before 17 October, 2014. The explanation proffered for the delay is that it was unaware of this order until receipt of a facsimile transmission from the respondent’s attorneys dated 4 November, 2014, drawing the applicant’s attention to the failure to file a plea and that it was barred from doing so.


[12] The applicant’s attorney further states that she is a sole practitioner with a candidate attorney who is inexperienced enough to have drafted the plea and counterclaim to the action.[7] She further deposed that the candidate attorney went on leave from 29 October to 5 December 2014. She states further that upon receipt of the letter from the respondent’s attorneys, she attended to drafting the plea and counterclaim, parts of which contain some technical detail with which she was not au fait.[8] She records further that she does her own typing of pleadings and that it took ‘some time’ to finalise the typing as well.[9]


[13] It is further stated on the applicant’s behalf that the attorneys had ‘many appearances during November and December 2014’ due to judicial case management and that the work load in the office ‘was just too high and I have not finished the plea and counterclaim in this matter in time.’ Ms. Petherbridge further stated that she caused the said plea and counterclaim to the said action to be typed and attached to this application.[10] She concluded the explanation for the default by submitting that a case had been made out for the grant of the relief sought in the notice of motion. I have placed certain paragraphs in parenthesis to show the detail or more particularly, the lack thereof in the affidavits.


[14] The question crying out for an answer is whether the applicant has indeed made a case for the relief sought. A positive finding will be made if she has, in the affidavit whose contents are recounted above, fully complied with all the requirements set out case law in the foregoing paragraphs.


[15] I wish to start with the latter requirement, namely, whether necessary allegations have been made in the affidavit alleging facts, which if proved, would entitle the court to find that the applicant does have a bona fide defence to the claim. I have scrutinized the applicant’s affidavit a number of times and the harrowing truth to which I have come is that there is no allegation whatsoever in the founding affidavit that remotely attempts to answer to the issue of the applicant having a bona fide defence. Nothing whatsoever is said at all about the applicant having a bona fide defence to the plaintiff’s claim.


[16] I make bold and say that not even a feeble attempt was made to deal with this leg of the enquiry even in reply. I say so mindful that an applicant must stand or fall on the contents of the founding affidavit and any attempt to introduce a case in reply may well have attracted an application to have the said allegation struck out. I say this for no other reason than to emphasise and show that the issue of a bona fide defence is one which the applicant simply paid no regard to whatsoever in the affidavit. A look at the applicant’s heads of argument will also show that this is a matter that did not even belatedly come into the frame of the case, not to say that this would have been permissible.


[17] I recall Ms. Petherbridge seeking to make oral argument in this regard and this is when she attempted whilst on her feet to punch holes into the respondent’s heads of argument. Oral argument must be confined to issues properly raised in the affidavits. One cannot pay regard to loosely assembled allegations made in oral argument when these ought to have but were not included in the affidavits. On this score, I am of considered view that the applicant has to fail. It must be recalled that an applicant for condonation must satisfy the court of the existence of both requirements. Failure to prove one is accordingly fatal and I so hold.


[18] I must point out that the plea that was attached to the application was filed not on the basis that it constitutes a bona fide defence to the claim but to pursue the argument that the plea is already in and no further time loss will be incurred in ordering same to be filed. Although there is no allegation as aforesaid that the plea constitutes a defence to the claim, I have considered that it raises no defence at all to the claim and if anything, the applicant appears to lay store on the counterclaim filed simultaneously with the plea. No defence to the claim is disclosed in the plea and one can say without diffidence that the defence is not bona fide and that it is ill-founded.


[19] The respondent has, in any event argued and apparently that the alleged counterclaim is based on contractual damages but the necessary allegations, including that the damages claimed were in the contemplation of the parties as a result of the breach[11], are not included, rendering the counterclaim in any event excipiable. This argument, which on first indications, appears formidable, was not answered by the applicant leaving the court with the impression that the purported counterclaim as presently averred, may well be destined to fail.


[20] For the sake of completeness, however I proceed to consider whether the applicant has succeeded in making out a case on affidavit that satisfactorily explains the non-compliance with the rules and the resultant delay. In doing so, I shall have regard to the judgment delivered by the Judge President in Telkom Namibia Limited v Michael Nangolo and 34 Others[12], where the learned Judge President laid down the law relating to applications such as this after considering other judgments. The learned J.P. then proceeded to distil some of the applicable principles in relation to applications for condonation, which the present one undoubtedly is. I presently consider those relevant to this aspect of the application.


[21] The principles include the following:


(a) Condonation must be sought as soon as the non-compliance has come to the fore. An application for condonation must be made without delay;[13]

(b) The degree of delay is a relevant consideration;[14]

(c) The entire period during which the delay had occurred and continued must be fully explained;[15] and

(d) There is a point beyond which the negligence of the legal practitioner will not avail the client that is legally represented.[16]


[22] I now deal with the explanation of the delay and the various time periods that are relevant as set out in the founding affidavit. Ms. Petherbridge depones that she became aware of the non-compliance after she received a letter from the defendant’s attorneys dated 4 November, 2014. In this letter, the plaintiff’s attorneys said the following in part:

Your client has failed to file his Plea as ordered. He is accordingly barred. Without prejudice of my client’s rights, kindly indicate by return of fax within 2 (two) days, how your client intends to settle the indebtedness, failing which I am instructed to move for Default Judgment. I trust it shall not be necessary.’

It must be mentioned that this letter was written about eight or so days after the time when the plea and counterclaim ought to have been filed. Ms. Petherbridge states that this was the first time she became aware of the fact that she was to file the plea by the aforesaid date and stated that she did not receive a copy of the case plan, presumably from the Registrar’s office.


[23] It is however inconceivable that the defendant’s attorney could say she was unaware of the dates by when her client ought to have filed a plea and counterclaim. I say this because she signed the case plan and it was the very signed copy that the court adopted and made an order of court. Furthermore, even if her version were to be believed, it is a historical fact that the plea was only filed together with the condonation application on 21 January 2014 some three months later. Three months is by any standards, an inordinately long period that should disincline the court from allowing condonation. According to the Telecom Namibia case (supra), the degree of delay is a relevant consideration.[17] For instance, in Namib v Essjay Ventures Limited,[18] a delay of one day in complying with the extended period of filing was excused by the court. A delay of three months is, in my judgment inordinately long and should serve to disincline the court towards exercising its discretion in favour of a party who has been so grievously tardy.


[24] Furthermore, the applicant has failed to fully explain the entire period of the delay. In this regard, blow by blow account of the delay in necessary in order to place the court in the shoes of the applicant in deciding whether the delay was reasonable in the circumstances. All that the applicant states in explaining the delay is that the attorneys were busy and had many court appearances. The appearances alleged are important as they would give the court a yardstick against which it can gauge the reasonableness of the explanation. I say more on this in the succeeding paragraphs. There is no explanation of what the applicant did from the time it became aware of the non-compliance on 4 November. The court is kept in complete darkness in this regard.  As indicated earlier in the Telecom Namibia case, condonation must be sought as soon as the non-compliance is realized. In this case there is no explanation for the delay in not complying with the court order and also in not moving the application for condonation timeously from the time the applicant became aware of the non-compliance.


[25] In a Swaziland Court of Appeal case of Unitrans Swaziland Limited v Inyatsi Construction Limited[19] where there had been a considerable delay in seeking condonation for non-compliance with the rules of the court of appeal relating to the filing of the record, the court said the following:[20]

The courts have often held that whenever a prospective appellant realises that he has not complied with a Rule of Court, he should apart from remedying his fault immediately, also apply for condonation without delay.’

In this regard, it will be seen that reference is made to an appellant in the judgment but in my view, the dictum is fully applicable to cases such as the present as well. It will be seen from what I have said above that the applicant did neither of what is stated above in good time. The remedying of the fault was not timeously done nor was an application for condonation timeously made either. A lengthy delay in respect of both aspects stares the court in the face without a plausible explanation.


[26] In the heads of argument and in argument, Ms. Petherbridge argued that the period of delay was not three months and in this regard referred to rule 54 (4) which states that for purposes of that rule, the days between 16 December and 15 January, both days inclusive, shall not be counted in computing the time allowed for delivering any pleading. In my view that rule does not apply to the filing of the applications for condonation. One cannot wait and not file an application for condonation and rest on the forlorn hope that one will be excused because of the application of the said rule 54 (4). A party can only do so to its detriment.


[27] Ms. Petherbridge may have been correct in so far as the filing of a pleading is concerned but where a party is in default of complying with a court order, it can hardly be heard to use this rule as protection or explanation for not filing at the least an application for condonation at the earliest opportunity. In any event, I am of the view that an application for condonation is not a pleading as envisaged in the said rule. I therefore do not agree with the said rule being a part of a viable excuse in explaining the delay in the circumstances.


[28] A word is necessary about the allegations that the defendant’s attorney was inundated with work and was accordingly unable to attend to preparing and finalizing the necessary pleadings in this matter. It has been deposed that Ms. Petherbridge was typing the documents herself and did not have any assistance as her candidate attorney was on leave. Is this a good excuse and one that can persuade the court to exercise its discretion in favour of the defendant in this case?


[29] My attention was brought to the case of Nedbank Bank Ltd v Louw[21] where there was delay by a legal practitioner in filing the notice of appeal in a labour dispute. At page 218, the court stated the following regarding the lateness in the filing of the appeal:


The reason for the lateness, he said, was pressure of work and he apologized. Now although the apology seems to express good manners, it is not a basis for condonation. The pressure of work in the life of a legal practitioner is nothing new. In A Barristers History of the Bar H.G. Hamilton quotes a letter which Cicero wrote to his brother in late August of the year 54 BC:

When you get a letter from me in the hand of one of my secretaries, you can reckon that I didn’t have a minute to spare; when you get one in my own, that I did have one minute! For let me tell you I have never in my life been more inundated with briefs and trials, and in a heat-wave at that, in the most oppressive of time of the year. But I must put up with it’”.

The court concluded by saying, ‘The art of legal practice is, in the words of Cicero, to put up with pressure, and to perform within the rules, not to ignore them. It seems to have become a fashion to disregard procedural stipulations and to rely on condonation as an entitlement, even worse, to equate an apology with condonation. If legal practitioners are driven by professional egoism and/or financial rapacity that they neglect briefs, such practitioners and their clients will incur misfortune.’


[30] It would appear from the foregoing that the fact that a legal practitioner was inundated with work such that he or she could not attend to instructions and court orders can never be regarded as sufficient reason to persuade a court to grant condonation. Unfortunately, in such cases, clients may and often do suffer as a result of the failings of their attorneys. It is for that reason that the court mentioned this as a “misfortune” above. When an attorney is inundated with work, it is only fair to advise the client of the difficulty and to advise them to refer the work elsewhere. This will retain the client’s trust and also maintain the relationship than when the client is led to believe that the work is being done when the opposite is actually the position, regardless of what the explanation is.


[31] The delay in this case and the reasons advanced therefor must be viewed in the context of the role of legal practitioners recorded in the rules of court.[22] Rule 19 (d) and (f) bear particular resonance in this regard. The former enjoins legal practitioners representing parties to ‘comply with any order or direction given by the court at any stage of the proceedings.’ On the other hand, rule 19 (f) calls upon legal practitioners to ‘comply with deadlines provided for the taking of any steps under these rules, the practice directions and any applicable law with diligence and promptitude’. (Emphasis added). Last and by no means least, rule 19 (i) also enjoins legal practitioners to ‘act promptly and minimise delay.’


[32] It therefore bears repeating that the duties mentioned above exacted on legal practitioners are expected by the court to be complied with in each and every case and to become second nature as it were to legal practitioners. If not, the beautiful edifice created by judicial case management will crumble. Legal practitioners play a pivotal role in making judicial case management a success and it appears the watchwords in so far as legal practitioners are concerned are, amongst others, promptitude, diligence and compliance.


[33] It is with a heavy heart that I must find as I have to do, that the circumstances of Ms. Petherbridge’s inundation with work, understandable as they may well be, do not pass muster in the circumstances. The long and short of it is that there is no reasonable explanation placed before court in the circumstances, resulting in the inevitable refusal of the application to uplift the bar.


[34] In this regard, I will take solace in the words expressed in Saloojee and Another v Minister of Community Development[23] quoted with approval in the Unitrans case (supra), where Steyn CJ said:


There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have disastrous effect upon the observance of the rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity.’

This is, in my view a case of a lengthy non-compliance with the rules of court and which is accompanied by a lack of a reasonable explanation of the delay, walking hand in hand, as it were, with a further unexplained delay in filing the application for condonation by the applicant.


[35] There is one matter that I find myself in duty bound to raise as a caution to legal practitioners and it is this. In this matter, Ms. Petherbridge filed the affidavit in support of the application for condonation, which in the circumstances, was the proper thing to do as no other person may have been able to tender an explanation in this matter as she is the one who personally handled the file. She then proceeded to prepare the heads of argument and to actually argue the application herself. I am of the view that in such cases, it is wise to secure another practitioner, who will bring an independent, impartial and dispassionate view to the matter. Personally arguing a matter in which you have an interest and are a witness does not bode well, particularly where your actions as an attorney in handling a matter, are placed under intense scrutiny. Someone else not intimately connected with the case is invariably better placed to plead your case as you may understandably be tongue-tied, thinking about the consequences in prospect. The conflict of your duty to the court on the one hand, and the personal attachment to the matter and the possibly adverse consequences make it a risky affair. It is akin to riding two horses at the same time. At the end, the rider is likely to fall off both of them and be injured or worse, be disfigured in the process.


Costs


[36] On the question of costs, the general rule appears to be that an applicant for condonation craves an indulgence from the court and as such should pay the costs of the application which can be said to be wasted because of that application. These costs should include costs of such opposition as in the circumstances the opposition appears reasonable and not vexatious or frivolous[24]. In the present application, even if the applicant had been successful in its application, it would still have had to pay the costs, as it was seeking an indulgence as said earlier. I also find that the respondent is entitled to the costs for opposition as its opposition does not strike me as vexatious, frivolous, ill-considered, or fitting any kindred epithets.


[37] In the premises, I issue the following order:

(1) The application for condonation is hereby dismissed with costs.

(2) The applicant is ordered to pay wasted costs of the application which include costs of the opposition, which is ordered to include costs of one instructing and instructed counsel.

TS Masuku, AJ

APPEARANCES

PLAINTIFF: W. H. Pfeiffer

Instructed by Behrens & Pfeiffer

DEFENDANT: M. Petherbridge

Instructed by Petherbridge Law Chambers

[1] Of the Rules of Court, 1990 (as amended on 24 December, 2013)

[2] 1954 (3) SA 352 (O)

[3] Smith NO v Brummer NO ibid (headnote at 353)

[4] 2014 (4) NR 971 at 976 A

[5] 2009 (1) NR 77 at 79 para [7]

[6] Chetty v Law Society, Transvaal 1985 (2) SA 756

[7] Paragraph 9 of the Founding Affidavit (p50 of the record)

[8] Paragraph 10 of the Founding Affidavit (50 of the record)

[9] Paragraph 11 of the Founding Affidavit (p50 of the record)

[10] Paragraph 13 of the Founding Affidavit (p 51 of the record)

[11] Amler’s Precedents of Pleadings, 6th ed, Lexis Nexis, Durban, 2003 at page 101.

[12] Case No: LC 33/2009

[13] Telecom Namibia (ibid at p4 [para [5] 3.

[14] Telecom Namibia ibid at p. 4 para [5] 4.

[15] Telecom Namibia ibid at p4 para [5] 5.

[16] Telecom Namibia ibid at p5 para [5] 6.

[17] Page 4 para [5] 4. Of the judgment

[18] 1996 NR 188 (HC) per Mtambanengwe J

[19] [1997] SZSC 41, per Kotze JP

[20] Ibid at page 11

[21] 2011 (1) NR 217

[22] Rule 19

[23] 1965 (2) SA 135 (AD) at 141 C-E

[24] Erasmus, Superior Court Practice B1-p173


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