Court name
High Court
Case name
Guimares v Volkov
Media neutral citation
[2001] NAHC 18
















A
172/2000





ABEL
P A GUIMARAES vs VICTOR VOLKOV







HOFF. J







HEARD ON: 2001/03/09 DELIVERED ON:
2001/05/21











PRACTICE











SUMMARY JUDGMENT:







Application for condonation of non
compliance with Rules -Late filing of heads of argument, late
indexing and pagination. Explanation not totally satisfactory but
cannot be said to be unreasonable - explanation accepted and
condonation granted. Applicant visited with costs of application.




IN
THE MATTER BETWEEN















ABEL P A
GUIMARAES


























APPLICANT

















versus





VICTOR
VOLKOV


RESPONDENT

















CORAM:
HOFF,
J.















Heard on:
2001.03.09







Delivered
on: 2001.05.21















JUDGMENT



HOFF,
J.
:
Respondent/Plaintiff
instituted an action on 3 July 1997 against applicant/defendant for
payment of the sum of
U$60
000 00 which was due and payable in terms of an acknowledgement of
debt signed by applicant in favour of respondent.













Default
judgment was granted against applicant on 3 February 2000. Applicant
having failed to file an replying affidavit enrolled for argument an
application for rescission of judgment on 4 December 2000. This
application for rescission of judgment was dismissed.Pursuant to an
application on notice of motion this Court on 22 January 2001 made
an order which contained
inter
alia
the
following provisions:




  1. the
    judgment and/or order by default against applicant on 4 December
    2000 at the instance of respondent is rescinded and/or set aside.



  2. the
    applicant's failure to have delivered a replying affidavit to the
    application for rescission of judgment by default granted on 3
    February 2000 timeously and/or at all is condoned.



  3. applicant
    is granted leave to deliver his replying affidavit to the
    application for rescission of judgment by default granted on 3
    February 2000 within 30 days from date hereof.
















Applicant
filed his replying affidavit on 1 March 2001.











The date of
hearing of 9 March 2001 was arranged and agreed to between the
parties with the registrar in respect of the application for
rescission of judgment.











The heads of
argument of applicant was filed on 7 March 2001 and the pagination
of the record was done on 8 March 2001.



The
respondent on 7 March 2001 gave notice of his intention to apply to
have certain portions of applicant's founding affidavit struck out.











Applicant
gave notice on 8 March 2001 that he would on 9 March 2001 apply for
an order in the following terms:




  1. condoning
    the late filing of applicant's heads of argument.



  2. condoning
    the fact that the process of Court and/or documentation pertaining
    to this application have not been timeously indexed and paginated.
















This
application for condonation is opposed by respondent.











In support
of this application for condonation applicant filed a supporting
affidavit of the instructing attorney in which the instructing
attorney stated that he had been hospitalised since 28 February
2001.











He does not
in his affidavit state when he had been discharged but mentioned
that on 2 March 2001, whilst still in hospital he had given certain
instructions to his secretary and that instructed counsel only
received the brief containing the necessary documentation on 5 March
2001 and heads of argument was then prepared and delivered on 7
March 2001.



He further
argued that since this Court granted leave to deliver his replying
affidavit within 30 days from the date of such order namely 22
January 2001 he had until 5 March 2001 to deliver his replying
affidavit and that heads of argument could not have been drafted
prior to the replying affidavit having been delivered.











If applicant
had known this why had he agreed to the date of hearing on 9 March
2001? In this regard there is no explanation.











Ms Viviers
who appeared on behalf of respondent argued that the instructing
attorney was negligent in his duties after his release from hospital
on 2 March 2001 and that he did not fully explain the circumstances
of his inability to observe the Rules of this Court. In this regard
she submitted that an cost order
de
bonis propriis
be
considered.











She argued
in addition that applicant in his application should also have dealt
with the prospects of success on the merits of the application
action which he failed to do and that this Court can only grant
condonation if there is compliance with the requirement that good
cause has been shown for non compliance with the rules as well as
his prospects of success on the merits of the application.











Mr Mouton
who appeared on behalf of the applicant argued that although the
prospects of success had not been dealt with in the supporting
affidavit of instructing attorney that the prospects of success are
being dealt with in other papers before Court.



It is trite
law that a Court may on good cause shown condone non-compliance of
it's rules.











In this
regard Tebbutt J said the following in the case of
General
Accident Insurance Co South Africa Ltd
v
Zampelli
1988
(4) SA CPD 407 on 411 C-D:











'"Good
cause shown' has now, it seems, been accepted to mean not only must
the applicant seeking the indulgence of condonation for the late
filing of the heads of argument in an appeal - for an indulgence it
undoubtedly is - give a reasonable and acceptable explanation for
his failure to comply with the Rules, but must also show that he has
—- fair prospects of success in the appeal or —- reasonable
prospects of success."











I further
agree with the remark on p410 I of the Zampelli case that
condonation is not a mere formality and that not every circumstance
nor every 'cause' will warrant condonation.











See in this
regard
S
v Zondo
1966
(2) SA TPD 521
Louw
v
Louw
1965
(3) SA EPD 852 Zampelli's case supra.



It is in my
view expedient that an applicant in his or her application for
condonation of non-compliance with a rule of practice, such as the
one which requires that heads of argument be filed, also deal with
the prospects of success on the merits of the application.











In casu I
am of the view that I am not precluded from having regard to the
merits of this matter as it appears from other documents filed.











On the
papers before me it appears that applicant has reasonable prospects
of success on the merits of the claim against him in the sense that
the monies which had been paid by applicant to respondent may
influence the amount respondent may eventually be awarded in the
event of success in his claim against applicant.











I would have
preferred the affidavit of instructing attorney to have been in more
detail but in my view his explanation for his inability to comply
with the rules, although not totally satisfactory, cannot be said to
be unreasonable or unacceptable.











This finding
together with the view that there is a reasonable prospects of a
partially successful defence induce me to exercise my discretion in
favour of granting this application for condonation of
non-compliance with the rules.















The
following order is hereby made:















1. the
late filing of applicant's heads of argument is condoned.




  1. condoning
    the fact that documentation pertaining to this application have not
    been timeously indexed and paginated.



  2. applicant
    to pay the cost of this application.