- October 12, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
On 26 July 2022, the defendant was ordered to file its notice of exception on or before 12 August 2022. That gave the defendant 12 court days and 17 calendar days to act, but the defendant failed to do so and brought an application for condonation. PARKER AJ considered the application and stated the following:
‘[2] The ineptness of the defendant’s legal practitioners and their sloven remissness cannot be good reasons that can persuade the court to exercise its discretion in favour of the defendant by granting the condonation application. The legal practitioners’ explanation that the late filing of the notice of exception is a bona fide mistake is respectfully rejected as not being good and valid. A ‘mistake’ is an act that is misguided or wrong.
[3] If you ask me, there has of late been far too many condonation applications doing their round in the court; condonation applications brought to condone the incessant failure to obey court orders by parties. This shameful vogue has the effect of setting at naught court orders and that does not conduce to the due administration of justice and the promotion of rule of law.
[4] [Counsel for applicant] attacked the respondent’s so-called opposing affidavit as being defective. That may be so. But that is of no moment. The fact that the opposing papers of the respondent is not an answering affidavit properly so called, does not mean that the applicant can obtain a judgment as if by default. The applicant must on its papers persuade the court to grant the relief sought (Christian v Metropolitan Life Namibia Retirement Annuity Fund and Others 2008 (2) NR 753 (SC) para 15).
[5] The applicant says the application enjoys good prospects of success, and so, the court ought to grant it. That is not a good enough reason as far as the court is concerned to grant the relief sought. To accept such contention will set a dangerous and unjustifiable precedent, remembering what I said previously about the unacceptable vogue that has bedeviled the court in its duty to attain due administration of justice and to protect and promote rule of law.
[6] Based on these reasons I decline to exercise my discretion in favour of granting the indulgence craved by the applicant. The application fails.’
Swartz v Namibia Water Corporation Limited (HC-MD-CIV-ACT-CON-2022-02419) [2022] NAHCMD 547 (12 OCTOBER 2022)