- September 21, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The order:
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- The plaintiffs’ application for condonation for late filing of the notice to amend the particulars of claim in default of the court order of 11 May 2023 is granted and the applicable bar is uplifted.
- The time limit to file the plaintiffs’ notice to amend the particulars of claim is extended to 16 June 2023.
- The first and second defendants must, jointly and severally, the one paying the other to be absolved, pay the plaintiffs’ costs of the application for condonation including costs of one instructing and one instructed legal practitioner, subject to rule 32(11).
- The defendants must file their objections, if any, to the notice to amend on or before 28 September 2023.
- The matter is postponed to 5 October 2023 at 08:30 for a status hearing.
- The parties must file a joint status report on or before 2 October 2023.
Reasons
The court was seized with an application for condonation for failure by the plaintiffs to file their notice of intention to amend their particulars of claim as ordered by the court.
Analysis
‘[21] Rule 54(3) of the Rules of this court reads:
‘Where a party fails to deliver a pleading within the time stated in the case plan order or within any extended time allowed by the managing judge, that party is in default of filing such pleading and is by that very fact barred.’
[22] Rule 55, on the other hand, provides that:
‘(1) The court or the managing judge may, on an application on notice to every party and on good cause shown, make an order extending or shortening a time prescribed by these rules or by an order of the court for doing an act or taking a step in connection with proceedings of any nature whatsoever, on such terms as the court or managing judge considers suitable or appropriate.
(2) An extension of time may be ordered although the application is made before the expiry of the time prescribed or fixed and the managing judge ordering the extension may make any order he or she considers suitable or appropriate as to the recalling, varying or cancelling of the consequences of default, whether such consequences flow from the terms of any order or from these rules.’
[23] In respect of the alleged non-compliance with rule 32(9), I hold the view that the plaintiffs’ intention to apply for condonation for the late filing of the notice to amend was laid bare in the correspondence where they further set out reasons for the default, and further annexed the intended application for condonation to the correspondence, demonstrates substantial compliance with rule 32(9). The stance, however, adopted by Mr. Boulter that the condonation application will be vigorously opposed throws turmoil to attempts to meaningfully engage in an exercise to seek an amicable solution to the impasse between the parties. With the stance taken by the defendants, it is inconceivable that an amicable solution could be envisaged. As a result, I opine that the argument of non-compliance with rule 32(9) lacks merit and falls to be rejected, as I hereby do.
[24] In I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC (I 601-2013 & I 4084-2010) [2014] NAHCMD 306 (17 October 2014), Damaseb JP discussed late amendments and remarked as follows at para 49:
‘The unchanged position under the rules of the court at the time the matter was argued and now is that an amendment may be granted at any stage of the proceeding and that the court has discretion in the matter, to be exercised judicially. The common law position that a party may amend at any stage of the proceedings as long as prejudice does not operate to the prejudice of the opponent remains, save that, like every other procedural right, it is also subject to the objectives of the new judicial case management regime applicable in the High Court. That includes the imperative of speedy and inexpensive disposal of causes coming before the High Court.’
[25] The explanation tendered by the plaintiffs that their legal practitioners and counsel were engaged in urgent court matters and that due to financial constraints, they could not instruct new legal practitioners, coupled with the fact that by the sixth court day out of time, they engaged the defendants in terms rule 32(9), renders their explanation reasonable in my view. By the seventh court day from the date on which the notice to amend was due, the plaintiffs filed the condonation application. Their promptness demonstrates an addition to the bona fide of their explanation.
[26] The defendants, however, failed to show how the default of the plaintiffs prejudiced them. The contention raised by the defendants that the plaintiffs did not seek upliftment of the bar is correct, but standing alone, it appears to be a technical approach aimed at nothing but technically throwing out the condonation application, while it is apparent from the condonation application that the plaintiffs seek condonation for late filing of the amendment and extension of time limits to file the amendment. Once the court grants the extension, it follows as a matter of consequence that, the applicable bar must be uplifted.
[27] Rule 55, cited above, allows the court, on good cause shown, to extend the time prescribed by the rules or an order of the court for doing an act or taking a step. In my view, the condonation application of the plaintiffs fits hand and glove with the provisions of rule 55. The fact that the condonation application does not refer to the upliftment of the bar should, in my view, not shut the doors of condonation in the plaintiffs’ faces, particularly where it is found that they proffered a reasonable explanation, the period of the default is negligible and there is no prejudice demonstrably suffered by the defendants. It should further be pointed out that the intention of the defendants to raise an exception to the amendment sought is an issue that is not ripe for determination. The intended exception will only become ripe after the amendment of the particulars of claim is permitted. I, therefore, decline the invitation to consider the intended exception at this stage.
[29] Having found that the explanation proffered by the plaintiffs for the default is reasonable and bona fide, and brought timeously, I hold the view that they are dispositive of the matter.
Conclusion
[30] In view of the findings and conclusions made hereinabove, and in the exercise of my discretion, I opine that the plaintiffs’ application for condonation is merited and stands to succeed. Condonation will, therefore, be granted.
Costs
[31] It is established law that costs follow the result, and no basis was laid for the court to find otherwise. It should be noted that the stance adopted by the defendants to vigorously oppose the plaintiffs’ condonation application is unfortunate, more so when the period of the default is negligible, no prejudice is demonstrated, and the defendants sought condonation of their own for not filing heads of argument in time. This attitude, in my view, calls for an adverse costs order against the defendants subject to rule 32(11) by virtue of the fact that these are interlocutory proceedings. I shall accordingly so order.
In the result, it is ordered that the plaintiff’s application for condonation for late filing of the notice to amend the particulars of claim in default of the court order of 11 May 2023 is granted and the applicable bar is uplifted. The time limit to file the plaintiffs’ notice to amend the particulars of claim was extended.