- April 17, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Order:
- The plaintiff’s application for condonation is hereby granted.
- There is no order as to costs.
- The matter is postponed to 17 May 2023 at 15h15 for additional case management conference.
- The parties shall file a joint additional case management report on or before 10 May 2023.
Reasons for order
This is an application by the plaintiff for an order condoning its non-compliance with the court orders dated 23 February 2022 and 13 June 2022 (i.e. failure to file its additional discovery affidavit by 18 May 2022 and failure to file its witness statements by 22 July 2022).
Analysis
‘[13] An applicant for condonation is required to:
(a) satisfy the court that he has a reasonable and acceptable explanation for the default, and
(b) show that he has reasonable prospects of success on the merits of the case.
[14] As for the requirement of the explanation of the default, it is settled law that condonation is not to be had for the asking. A full and detailed explanation for the default must be furnished to enable the court to understand the reasons for the default.
[15] As regards the prospects of success, it is settled principle that if the prospects of success are shown, they may mitigate the fault on the part of the applicant. A court may exercise its discretion in favour of the applicant despite a poor explanation for the default.
[16] In the present matter, the first defendant does not challenge the veracity of the explanation put forth by the plaintiff for the default. However, the first defendant attacks the explanation given that it does not amount to an acceptable explanation.
[17] I am of the view that the plaintiff’s affidavit could have dealt with the delay in a more comprehensive manner, setting out, among other things, time-lines when the specific witness statements were prepared and finalized. Although the explanation given is short on details, to the extent that it does not paint a fuller picture as would have been desirable, I am satisfied that the explanation is adequate in the circumstances. From the explanation given, the court is able to determine, in broad terms, the reasons for the delay, namely the sheer number of witnesses that the plaintiff intends to call coupled with the number of statements that needed to be prepared and the difficulties encountered in contacting and securing such witnesses’ co-operation in providing the statements for the purposes of trial. I am, therefore, of the opinion that the plaintiff has put forward a reasonable and acceptable explanation for the delay.
[18] As regards the issue of prospects of success, the plaintiff has set out facts relating to the modus operandi, allegedly employed by the first defendant in this matter, which the intended witnesses will testify to. I am of the view that the plaintiff has established reasonable prospects of success on the merits of the case.
[19] In the circumstances, I am satisfied that the plaintiff has made out a proper case for granting condonation.
In its application for condonation, the plaintiff also prayed for the costs of the application. It is common cause that the first defendant has been granted legal aid in the present matter. It is trite law that ordering the first respondent to pay costs, in such circumstances, would amount to ordering the State to pay the costs so ordered. In the circumstances, the court made no order as to costs.