Court name
High Court
Case name
Van Zyl and Another v Smit and Another
Media neutral citation
[2007] NAHC 206





REPORTABLE





REPORTABLE





SUMMARY



CASE NO.: (P) A 105/2006







VAN ZYL & ANOTHER V SMIT &
ANOTHER



VAN NIEKERK, J






21
May 2007



PRACTICE







Application
for condonation for late filing of heads of argument – opposed
motion – Practice Direction No. 2/2006 requires applicants to
file heads of argument 15 clear court days before date of hearing –
in
casu

heads filed two clear court days before date of hearing –
applicant for condonation must show good or sufficient cause for
non-compliance – applicant must satisfactorily explain delay in
manner sufficiently full to enable Court to understand how it really
came about – applicants’ explanation found to fall far
short of this requirement – other relevant factors bearing on
application are respondents’ attitude, nature of case, purpose
of Practice Direction, convenience of Court and avoidance of
unnecessary delays in administration of justice.







Purpose and effect of Practice
Direction No. 2/2006 discussed.







Respondents
not opposing application for condonation – although
inconvenienced, respondents desirous to have main application heard
–no specific reasons advanced nor particulars of prejudice
placed before Court – respondents’ attitude, while not
irrelevant, by no means an overriding consideration – no
indication
in
casu

that applicants employing tactic to delay hearing of matter.







Condonation
refused - main application struck – applicants ordered to pay
costs of the day.



CASE NO.: (P) A I 105/2006







IN THE HIGH COURT OF COURT OF
NAMIBIA







In the matter between:







JOHAN VAN ZYL

1
ST
APPLICANT



NAMIBIA CASH LOAN CC 2ND
APPLICANT







and






DANIËL
PETRUS SMIT 1
ST
RESPONDENT


LOUIS
PETRUS FOURIE 2
ND
RESPONDENT







CORAM: VAN
NIEKERK, J







Heard: 21
May 2007



Delivered: 21
May 2007



________________________________________________________________________



REASONS



VAN NIEKERK, J:







[1] This
is an application (“the main application”) to enforce a
settlement previously made an order of this Court. It is opposed by
the two respondents. When the matter was called, I heard Mr
Strydom
on behalf of applicants and Mr
Corbett
on behalf of respondents on the issue of applicants’
application for condonation for the late filing of their heads of
argument. Thereafter I made an order dismissing the application for
condonation. I also struck the main application from the roll and
ordered the applicants to pay the costs of the day. The reasons for
these orders follow.







[2] The
filing of heads of argument in this particular case is regulated by
the Judge-President's Practice Direction No. 2/2006 (“the
Practice Direction”) which became effective on 18 September
2006. Although not applicable in this case because they came into
operation on 8 May 2007, the Consolidated Practice Directions
subsequently issued by the Judge-President incorporates the Practice
Direction almost word for word.







[3] In
terms of paragraph 2 of the Practice Direction, the applicants were
required to file their heads of argument not later than 15 clear
court days before the date of hearing. Excluding the 8 Saturdays
and Sundays, as well as the 3 public holidays during this period, the
applicants should therefore have filed their heads of argument by no
later than 24 April 2007. Applicants however filed their heads at
14h15 on 15 May 2007, a mere two court days before the date of
hearing.







[4] As
required by the Practice Direction, applicants also filed an
application for condonation for failure to file their heads on time.
This was done on 16 May 2007. The application is supported by an
affidavit deposed to by the applicants' instructing counsel, Mr Gous.
He states in the affidavit that the heads of argument were supposed
to have been filed by no later than Friday, 27 April 2007. He
states that on Monday, 23 April 2007, he instructed his secretary to
prepare counsel for applicants’ brief for delivery that same
day. Then, acting on the secretary’s assurance and his own
belief that the brief had been delivered to counsel, he went about
his usual business for the rest of that week, also attending to
matters out of town. The next week he was on leave. He returned to
his office on Monday, 7 May 2007, when he for the first time made
enquiries with counsel whether there was any further preparatory work
to be done in the matter. Counsel then informed him that he never
received the brief and that no heads of argument were filed. Mr Gous
then relates what steps were taken to locate the brief, which had
mysteriously disappeared. Enquiries with the firm's messengers
revealed nothing. Then, on 9 May, the clients’ file was
forwarded to counsel, who agreed to prepare the heads after hours
while he was engaged in another matter. On the evening of 10 May
counsel informed Mr Gous that no copy of the founding papers was in
the brief. The next day a copy was made from a copy of the papers on
the Court file. Counsel attended to the heads over the week-end and
thereafter, until the heads were eventually filed on 15 May.







[5] Whether
the rule is laid down by the rules of court or practice direction, it
is trite that in an application of this kind the applicant must show
good or sufficient cause for the failure to comply with the rule.
The applicant must show “something which the Court considers
sufficient to justify it in granting indulgence” (
Rose
& another v Alpha Secretaries Ltd
1947
(4) SA 511 (A) 517). If there was a delay in complying with the
rule, the applicant for condonation must satisfactorily explain the
delay in a manner sufficiently full to enable the Court to understand
how it really came about (
Silber
v Ozen Wholesalers (Pty) Ltd

1954 (2) SA 345 (A) 353A).







[6] In
my view the applicant’s explanation falls far short of this
requirement. Mr Gous furnishes no explanation for the fact that he
wrongly calculated the deadline for the heads of argument to be 27
April 2007. Even if he did not realize this at the time of making
the affidavit, between him and counsel appearing, they should have
realized this subsequently when preparing for this application and at
least have filed an affidavit explaining this error. In any event,
if they had properly read Mr
Corbett’s
heads of argument already filed on 2 May 2007, they would have been
alerted to the fact that the heads were supposed to have been filed
no later than 24 April 2007 and not 27 April 2007.







[7] Quite
apart from this, even if it may be case that Mr Gous on 23 April 2007
bona
fide

was under the impression that the due date was 27 April 2007, I am of
the view that,
prima
facie,
he
left it to a very late stage to instruct counsel to draft heads in
such a lengthy application as this which consists of 585 pages.
Although it is not impossible for counsel to have completed the heads
in such a short time, one would expect instructing counsel to have
made special arrangements to ensure that counsel briefed is duly
informed of the very short time available and to ensure that counsel
was able and willing to accept such instructions at such short
notice. One expects that this much would then have been stated in
the affidavit, which it is not. If counsel had been aware that he
had to draft the heads by 27 April 2007, one expects an explanation
why he did not call for the brief when he realized that it had not
been delivered. However, not a word is said about any of this in the
affidavit. Apart from this, instructing counsel did not make any
enquiry whatsoever from 23 April 2007 to 7 May 2007 to follow up
whether what may, in the circumstances, be called urgent heads of
argument, were indeed filed. It was his responsibility to have seen
to a matter like this.







[8] To
compound matters, counsel was apparently later on 9 May 2007 briefed
without a copy of the founding papers. The explanation regarding this
issue is obscure. Mr Gous states in paragraph 13 of his affidavit
that when he and counsel went through, what I might call the second
brief, to look for the founding papers together “it became
apparent that the original founding papers were enclosed in the brief
due to the voluminous nature thereof”. In order to make a copy
of the founding papers for instructing counsel, a copy of the papers
was obtained from the court file and copied for counsel. Why the
original papers were not on the court file where they belong, but in
the brief, is not explained. Why counsel could not draw heads from
the original papers he had in his brief or make a copy for him from
the originals, is also not explained. I fail to understand what
bearing the voluminous nature of the papers had on the matter. Is
counsel supposed to be properly briefed only in cases where papers
are not voluminous?







[9] The
incompleteness and inadequacy of the applicants’ explanation,
coupled with the extent of the delay, renders it difficult, if not
impossible, to find that good cause has been shown for granting the
indulgence sought. However, in this case there are other factors
which I should also consider in the exercise of my discretion.
Amongst them are the respondents’ attitude, the nature of the
case, the purpose of the Practice Directive, the convenience of the
Court and the avoidance of unnecessary delays in the administration
of justice.







[10] In
his heads of argument, filed before applicants delivered their heads
and their application for condonation, Mr
Corbett
took
the stance that the main application should be struck with costs,
because applicants were in breach. At the hearing, although Mr
Corbett
was not complimentary in his description of the merits of the
application for condonation and emphasized the inconvenience caused
by the very late delivery of the heads of argument, he held
instructions not to oppose it as the respondents were desirous of
having the main application heard. No specific reasons were advanced,
nor were particulars placed before me of any prejudice to be suffered
should the matter not be heard. However, it was acknowledged on
behalf of respondents that it was for the Court to decide whether to
grant condonation.







[11] At
this stage it becomes necessary to look at the Practice Direction in
more detail. Paragraph 4 thereof reads:







4. If
a practitioner fails to file Heads of Argument in time, a proper
Application to condone such failure should timeously be filed with
the judge or judges as the case may be. Ordinarily, if the Heads of
Argument of both parties, or anyone of them, are not filed within the
time set out in paragraph 2 of this Direction, the Application will
not
be
heard. If condonation is granted, the Application shall be postponed
to a date previously arranged with the Registrar or to another date
when opposed applications are heard. When no Heads of Argument have
been filed in the time provided therefore and no application for
condonation has been made, the presiding judge may in his/her
discretion strike the Application from the Roll with or without an
appropriate costs order, or hear the Application and adjudicate upon
it without all the Heads of Argument and make such costs order as is
deemed appropriate in the circumstances.”







[12] It
is clear that the Practice Direction contemplates that the usual
practice is that, where an application for condonation is filed, the
main application will not be heard. If condonation is granted, the
main application must ordinarily be postponed. Although the Practice
Direction does not expressly deal with the course to be followed when
condonation is refused, there is in my view no reason why,
ordinarily, the main application should not be struck or postponed
with an appropriate costs order. Therefore, whether condonation is
granted or not, ordinarily the main application will not be heard.
The inference to be drawn, in my view, is that the fact that,
ordinarily, there will be a delay in hearing the matter, has already
been taken into account in the Practice Direction.







[13] In
paragraphs 1, 2 and 3 of the Registrar’s explanatory note to
the Practice Direction dated 7 April 2007, it is explained that the
purpose of the Practice Direction is to complement the new system
recently introduced by the Judge-President in which the aim is to
overhaul the enrolment of cases; to manage the court roll effectively
and fairly for the benefit of practitioners, judges and the public;
and to afford judges hearing opposed motions more time to know what
the arguments are that will be presented and to prepare themselves
properly for the hearing and the consideration of oral argument.
Judges in this jurisdiction work under great pressure and cannot
waste their valuable time doing unnecessary preparation for
applications that may not be heard because one of the parties does
not follow the rules. Recognizing this, the Practice Direction lays
down that the matter will normally not be heard, thereby freeing the
judge from having to intensively prepare for the hearing and allowing
him or her to concentrate on other work. In the instant case the
applicants’ heads of argument, consisting of 31 pages, were
filed two court days before the date of hearing and the application
for condonation one day later. Not only the respondents, but the
Court as well, was greatly inconvenienced by this late delivery. The
fact of the matter is that, even though the Practice Direction
contemplates that the matter will ordinarily not be heard, the Court
still has to prepare sufficiently to be able to consider whether to
exercise its discretion to hear the matter, should circumstances
require this. Not knowing until very late whether applicants would be
filing heads and an application for condonation and then having to
deal with these documents and the implications of their delivery at
the last minute, put respondents and the Court in an intolerable
position.







[14] In
considering the need not to undermine the purpose of the Practice
Direction I agree, with respect, with the following statement by
G
IBSON,
J in
Johnston
v Indigo Sky Gems (Pty) Ltd

1997 NR 239 (HC)
241E-F:







The
crux of the matter is that there appears to have been a flagrant
breach of the Rules of Court. Given that course of conduct, my
attitude is that the Court can only ignore such attitude at its peril
and to its own prejudice in the running and administration of the
Court's business. Thus my view is that such failure cannot be
overlooked in the circumstances of this case because to do so would
be to encourage laxity in the preparation of Court pleadings. The
orderly arrangement of Court proceedings as presently known, will be
a thing of the past. If rules are only to be followed when a legal
practitioner sees fit to do so, then the Rules may as well be torn
up.”











[15] The
Practice Direction does bear in mind that an unscrupulous party may
manipulate the situation to create a delay in the hearing of the
application and allows that the presiding judge may nevertheless hear
the matter (see paragraph 4 of the Practice Direction and paragraphs
4.5 – 4.7 of the Registrar’s explanatory note). However,
there is no indication
in
casu
that
such circumstances are present.







[16] While
bearing in mind the following statement in
Saloojee
& another NNO v Minister of Community Development

1965 (2) SA 135 (A) 138D: “It is for the applicant to satisfy
this Court that there is sufficient cause for excusing him from
compliance, and the fact that the respondent has no objection,
although not irrelevant, is by no means an overriding consideration”,
the Court, in reaching its decision in this application, took due
note of the respondents’ attitude and of the fact that it is
they, and not the applicants, who set the main application down. I
accept that the respondents are for some reason desirous to have the
matter finalized and that remissness on the part of applicants is
delaying the fulfillment of that desire. In eventually declining to
grant condonation and while this is not the only consideration, I had
regard to the fact that there is nothing before me to allow me to
reach the conclusion that the applicants were abusing the situation
or employing any tactic to delay the hearing of the matter.







[17] In
further considering the factor of respondents’ attitude, the
nature of the application is also relevant. The applicants seek
delivery of certain electronic equipment, safes and furniture; access
to remove certain items of furniture; rendition of an account and
debatement thereof; payment of certain amounts of money; and delivery
of certain accounting records. A delay in the matter would appear to
adversely affect the applicants, rather than the respondents. On the
other hand, the allegation that respondents are in breach of a
previous order of this Court is
prima
facie

serious and if correct, such a breach should not be allowed to
continue unduly lest the authority of the Court is undermined.
However, by declining to grant condonation and striking the
application, which may be re-enrolled as soon as in the next term, it
seems to me that two purposes are served: firstly, the preservation
of the authority of the Court in requiring that its rules be followed
and, secondly, the avoidance of an undue delay in hearing the main
application and, if necessary, the enforcement of the previous Court
order. By awarding costs against the applicants any inconvenience and
prejudice caused to the respondents may be assuaged.







[18] Counsel
for applicants submitted that the failure to file the heads of
argument timeously is not the fault of the applicants, but of the
legal practitioners involved and that applicants should not be
punished where their lawyers are to blame. However this submission
is not fully borne out by the affidavit. Mr Gous states in paragraph
20: “In conclusion I respectfully submit that the late filing
is not due to any delay and/or fault on part of the applicants and
insofar as there may be procrastination concerning the legal
practitioners, I respectfully pray the Court’s indulgence.”
This is no clear allegation that the legal practitioners are to be
blamed or that there was procrastination on their part. The
allegation as formulated, coupled with the inadequate explanation in
the rest of the affidavit, requires of the Court to read between the
lines and to speculate as to the actual cause for the delay. In these
circumstances I am not inclined to grant the indulgence sought on
this basis.







[19] Having
considered all the various other relevant factors, they did not weigh
sufficiently with me in

favour

of granting condonation where the explanation for the applicants’
failure is as inadequate as I have set out above. I therefore made
the orders mentioned at the beginning of this judgment.























__________________________



VAN NIEKERK, J



































APPEARANCE FOR PARTIES:






FOR
APPLICANTS:
Adv
J A N Strydom



Instructed
by: Theunissen, Louw & Partners










FOR
RESPONDENTS:
Adv
A W Corbett



Instructed by: Chris Brandt
Attorneys