CIVIL PROCEDURE – GUIDING PRINCIPLES FOR CONDONATION APPLICATIONS

Lalapanzi Body Corporate v Nesa Event Management CC NAHCMD (20 January 2023)

 

The second and third defendants applied to the court to condone the late filing of their answering affidavits. The second and third defendants communicated with their legal practitioners of record via email and due to some misunderstanding the answering affidavit of the second defendant and confirmatory affidavit of the third defendant was only filed on the 27^th of September 2022 instead of the 26^th of September 2022. They submitted that the plaintiff was not prejudiced by the filing of the affidavit one day late and that there was good prospects of success on their side in the current matter. This application was opposed by the plaintiff. RAKOW J considered the application for condonation thus:

 

‘[5]         In the matter of Telecom Namibia Limited v Mitchell Nangolo & 34 Others (LC 33 of 2009) [2012] NALC 15 (28 May 2012), Damaseb JP identified the following as principles guiding applications for condonation:

 

1. It is not a mere formality and will not be had for the asking. The party seeking condonation bears the onus to satisfy the court that there is sufficient cause to warrant the grant of condonation.
2. There must be an acceptable explanation for the delay or non-compliance. The explanation must be full, detailed and accurate.
3. It must be sought as soon as the non-compliance has come to the fore. An application for condonation must be made without delay.
4. The degree of delay is a relevant consideration.
5. The entire period during which the delay had occurred and continued must be fully explained;
6. There is a point beyond which the negligence of the legal practitioner will not avail the client that is legally represented. (Legal practitioners are expected to familiarize themselves with the rules of court).
7. The applicant for condonation must demonstrate good prospects of success on the merits. But where the non-compliance with the rules of Court is flagrant and gross, prospects of success are not decisive.
8. The applicant’s prospect of success is in general an important though not a decisive consideration. In the case of Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and Others, Hoexter JA pointed out at 789I-J that the factor of prospects of success on appeal in an application for condonation for the late notice of appeal can never, standing alone, be conclusive, but the cumulative effect of all the factors, including the explanation tendered for non-compliance with the rules, should be considered.
9. If there are no prospects of success, there is no point in granting condonation.’

 

As a result, the application for condonation was granted.