- April 28, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant instituted a claim for damages incurred by him as a result of a motor vehicle accident between his vehicle and that of the first respondent. The applicant’s vehicle was driven by a Mr. Festus Negongo, whereas the respondent’s truck was driven by its employee, the second respondent (Mr Nangolo Lugambo). Mid-trial, the applicant realised that he could not call the second respondent to testify as a witness because his two-page witness statement only contained his name and signature, making it incomplete. The body of the witness statement was missing. This resulted in the applicant lodging an interlocutory application to file a complete witness’ statement of Mr Nangolo Lugambo. The application was opposed. The applicant submitted that the error can be attributed to a bona fide administrative oversight. In opposition, the respondent submitted that the nature of the administrative oversight and how it came about was not explained and the granting of the application would lead to the postponement of the trial, the filing of additional witness statements and may require additional discovery in order to deal with whatever issues would be raised in Mr Lugambo’s witness’ statement.
Determination
The Court affirmed that it is trite law that a party that seeks condonation for non-compliance with any order of court, must provide a full and comprehensive explanation that will bring the court to speed as to how that failure or non-compliance came about. This was starkly missing in this case.
In De Klerk v Penderis and Others (SA 76-2020) [2023] NASC (1 March 2023), the Supreme Court was confronted with an application for condonation where it was alleged that the failure to comply with the requirements of the rules of court, was due to a ‘calculation error’. In dealing with the said explanation, the court, per Angula AJA, remarked as follows:
‘[37] The appellant failed to explain the so-called “calculation error”. In my view the margin of error, if any, is too wide. The explanation would have been acceptable if, for instance, the error of calculation was out with say one day. The 11th respondent correctly points out in this regard that even if the clear day’s calculation method was applied, the heads of argument should have been filed no later than 7 October 2022. In my view, the appellant’s explanation is not bona fide and is disingenuous. It is rejected. The point in limine is well taken and is upheld.’
What is illustrated in the above excerpt, is the unqualified need for a litigant, who approaches the court for it to open its condonation doors, to make a full, frank, and coherent explanation for the delay, error, or non-compliance. Where, as in this case, the oversight is just labelled as such, in the absence of a full and coherent explanation, the court may be within its rights to infer that there are no bona fides. A party that truly seeks condonation, must show contrition and make a clean breast of the relevant circumstances. It must hide nor hoard anything, regardless of how harmful to the case it might be.
MASUKU J stated that:
‘[35] It has been stated that there is a limit beyond which a litigant may not survive the consequences of his legal practitioner’s ineptitude. The long and short of it is that the applicant and his legal practitioners should have taken steps timeously to address the shortcomings of their case in this regard. Even when alerted to it, they folded their arms and did nothing. It is difficult, in those circumstances, for the court to come to the aid of a party that sits idle and does not do its homework, even when the adversary makes it wise to the deficiencies of its case.
[36] I cannot close my eyes to the trial prejudice that the respondent will suffer. First, it has been pointed out that the respondent has conducted its case and its defence in particular, based on the documents, including the witnesses’ statements filed by the applicant. This includes the ‘witness statement’, (if it at all is one), of Mr Lugambo. In this regard, instructions would have been taken with the ‘empty’ witness’ statement in mind. This had other consequential trial decisions when it came to the cross-examination of the applicant’s witnesses. Mr. Barnard pointed out that the case was thus planned, and the cross-examination was tailored according to the material properly filed by the applicant.
[37] A decision to grant the application may result in the matter having to be reopened, and the witnesses who have testified recalled. Furthermore, the respondent may have to go back to the drawing board, seek discovery and comply with other pre-trial steps. This would cause manifold inconveniences to the court and other litigants who would be deprived of court time due to the laxity of the applicant in prosecuting his claim. Re-opening the case is, in any event, not a viable or justified option, considering in any event that no proper explanation has been given to the court as to how we find ourselves in this situation.
[40] I would like to revert to the TransNamib case, Mr Shimutwiken referred to. The court, when upholding a party’s fair trial rights, does not do so in a vacuum. There must be facts, explanations, and revelations made with completeness and candour, which the court has properly to weigh and place in the balance. Furthermore, the court’s eyes must also not be closed to the fair trial rights of the other party as well. In this case, the applicant failed to explain its case with completeness and frankness that would have enabled the court to grant the application prayed for.’
As a result, the applicant’s application to file the complete witness’ statement of Mr Nangolo Lugambo was refused. With regard to costs, the applicant was ordered to pay the costs of the application, consequent upon the employment of one instructing and one instructed legal practitioner, subject to the provisions of rule 32(11).