Court name
High Court Main Division
Case name
I A Bell Equipment Co Namibia (Pty) Ltd v ES Smith Concrete Industries CC
Media neutral citation
[2015] NAHCMD 493
Masuku AJ




the matter between:

no: I 1860/2014

23 MARCH 2015





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


6 March 2015

23 March 2015

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


The application for condonation is hereby dismissed with costs.

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.



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

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

Allowing the plea and counterclaim of the Applicant attached to this

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

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.

Extending the period for discovery to 27 February 2015.

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

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.

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.

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.

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:

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”.

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.

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
N.O. v Brummer
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]:

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.” 

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.

I am accordingly constrained not to agree that where a party is ipso
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

I should point out that from the requirements set out in the
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
and Others v Orman
also in
v De Klerk.
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.

Second, the applicant should satisfy the court on oath that it has a
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
failure to satisfy one may lead to the application being refused.[6]

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.

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
records further that she does her own typing of pleadings and that it
took ‘some time’ to finalise the typing as well.[9]

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

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.

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.

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.

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.

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.

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.

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
Namibia Limited v Michael Nangolo and 34 Others
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.

The principles include the following:

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

degree of delay is a relevant consideration;[14]

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

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

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:

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.’

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.

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
(supra), the degree of delay is a relevant consideration.[17]
For instance, in
v Essjay Ventures
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.

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.

In a Swaziland Court of Appeal case of
Swaziland Limited v Inyatsi Construction Limited
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]

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

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.

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.

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

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?

My attention was brought to the case of
Bank Ltd v Louw
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:

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:

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’”.

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.’

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.

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
diligence and promptitude
(Emphasis added). Last and by no means least, rule 19 (i) also
enjoins legal practitioners to ‘act promptly and minimise

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.

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

In this regard, I will take solace in the words expressed in
and Another v Minister of Community Development
quoted with approval in the
where Steyn CJ said:

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
should not be allowed to become an invitation to

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

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.


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.

In the premises, I issue the following order:

The application for condonation is hereby dismissed with costs.

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.

Masuku, AJ


W. H. Pfeiffer

by Behrens & Pfeiffer

M. Petherbridge

by Petherbridge Law Chambers

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

1954 (3) SA 352 (O)

NO v Brummer NO ibid
at 353)

2014 (4) NR 971 at 976 A

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

v Law Society, Transvaal 1985 (2) SA 756

Paragraph 9 of the Founding Affidavit (p50 of the record)

Paragraph 10 of the Founding Affidavit (50 of the record)

Paragraph 11 of the Founding Affidavit (p50 of the record)

Paragraph 13 of the Founding Affidavit (p 51 of the record)

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

Case No: LC 33/2009

Telecom Namibia (
p4 [para [5] 3.

Telecom Namibia
p. 4 para [5] 4.

Telecom Namibia
p4 para [5] 5.

Telecom Namibia
p5 para [5] 6.

Page 4 para [5] 4. Of the judgment

1996 NR 188 (HC) per Mtambanengwe J

[1997] SZSC 41, per Kotze JP

page 11

2011 (1) NR 217

Rule 19

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

Erasmus, Superior Court Practice B1-p173