- May 26, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Practice Directive 61
The interlocutory application pertains to seeking permission for the late submission of an answering affidavit and lifting the bar imposed due to the delay. The main application involves the respondents’ request to have a foreign civil judgment, granted by the Dubai Courts of First Instance, declared enforceable and executable against the concerned parties. They seek payment of monies and interests based on this judgment.
The main application was served on 20 October 2022, and the court scheduled the matter for 2 December 2022. On 28 October 2022, Mr. Namandje, representing the first respondent, filed a notice of intention to defend but failed to submit the answering affidavit within the specified time. Subsequently, on 10 January 2023, Mr. Namandje filed a condonation application for the late submission, which was contested by Ms. Kemp, the counsel for the respondents. Following the exchange of the answering and replying affidavits, the matter was set for a hearing.
Mr. Namandje filed a founding affidavit, supported by a confirmatory affidavit from the first applicant. The applicant’s counsel presented a lengthy history of disputes between the parties. He referred to a previous case on the same facts, withdrawn by both parties on 10 March 2022. Despite the withdrawal, the respondents initiated the current matter in October 2022, with Mr. Namandje entering an appearance to defend the enforcement application. However, he failed to submit an answering affidavit by the due date of 17 November 2022.
Mr. Namandje explained that the reason for the failure was due to a mix-up of files. He mistakenly combined this case file with a criminal case file of the first respondent, which had a later due date. Consequently, he forgot to schedule an appointment with his client for preparing the answering affidavit. It was only a day later, when the legal practitioners set the matter for a hearing, that he realized the omission. He promptly contacted Ms. Kemp, notifying her of the situation, and sent a letter on 21 November 2022, indicating that he would submit a condonation application and answering affidavit. He also suggested withdrawing the Notice of set down on 2 December 2022 and offering to pay costs.
Ms. Kemp replied that she needed to consult with her clients before making a decision. On 28 November 2022, she informed him that the clients agreed to remove the matter from the court roll if the first respondent abandons the taxation of wasted costs from the previous case withdrawal.
In response, Mr. Namandje provided a status report to Ms. Kemp, proposing to submit the answering affidavit by 23 January 2023. On 2 December 2023, she replied via email, stating that her clients agreed to remove the matter from the roll and highlighted the need to decide when further pleadings would be filed. On 6 December 2023, he followed up with Ms. Kemp, who requested a specific date for filing the condonation application and informed him that her clients were not willing to accept extensive timelines.
Subsequently, Mr. Namandje promised to submit the condonation application by 14 December 2022 but was unable to do so due to his involvement in assisting a junior counsel in urgent legal matters. These included a case concerning the release of four Angolan boys who were unlawfully detained for four years and a significant constitutional matter involving Hollard, the Minister of Finance, and Namibia Reinsurance Company. He asserted that the client had always intended to oppose the enforcement application, and as the legal practitioner, he had informed the client that he would arrange a date for consultation on the answering affidavit. Consequently, the client was unaware of the affidavit’s due date on 17 November 2022.
Finally, concerning the merits of the enforcement application, Mr. Namandje argued that the application had several flaws. He contended that the applicants should not have brought the same matter without first seeking leave from the court. He also claimed that the power of attorney had expired and that the application did not meet the common law requirements for recognizing and enforcing a foreign civil judgment in Namibia.
Mr. Sadek Belhadri submitted an answering affidavit, contending that the condonation application lacked sufficient grounds for the relief sought. He challenged the authority of the legal practitioner to bring the application on behalf of the client. Mr. Belhadri expressed frustration over numerous unnecessary engagements with his legal representatives to agree on filing dates, an answering affidavit, and a condonation application. He argued that failing to diarize a matter, assisting a junior colleague, or being involved in an important constitutional case are not reasonable explanations for the delay.
He denied the relevance of a previously withdrawn matter but acknowledged that nothing prevented the applicant from re-instituting the case since there was no judgment on the merits. He point out that the notice of intention to defend was also submitted late, with the correct due date for the answering affidavit being 16 November 2022.
Regarding the proposed status report, Mr. Belhadri criticized its omission of mentioning a condonation application and its change of the answering affidavit’s proposed date to 23 January 2023 instead of 2 December 2022 when the matter was removed from the residual roll. He accused the opposing party of blatant and wilful default and claimed they will be prejudiced if condonation is granted for the late filing of an answering affidavit.
[11] Regarding the replying affidavit, Mr. Belhadri briefly mentioned that the affidavits were made with full authority and instructions for the condonation application. The replying affidavit accused the opposing party of causing obstructive delays instead of focusing on the merits of the matter.
CLAASEN J:
In legal practice, it is well-established that when a party seeks leniency or indulgence from the court, the applicant must promptly provide a reasonable and acceptable explanation for any delay in complying with court orders or rules. Moreover, the applicant must also demonstrate to the court that there are reasonable prospects of success regarding the merits of the case.
The Supreme Court, in the case of Rainer Arangies t/a Auto Tech v Quick Build, has elaborated on these factors as follows: “the extent of the non-compliance with the rule in question, the reasonableness of the explanation offered for the non-compliance, the bona fides of the application, the prospects of success on the merits of the case, the importance of the case, the respondent’s (and where applicable, the public’s) interest in the finality of the judgment, the prejudice suffered by the other litigants as a result of the non-compliance, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice.”
These factors serve as essential criteria that the court considers when deciding whether to grant indulgence or leniency in cases where there has been non-compliance or delays.
a) The court held that while courts generally avoid penalizing litigants for their attorneys’ negligence, it does not imply that legal practitioners can assume condonation will be automatically granted. In this case, the court noted the applicants’ approach to the default situation. Mr. Namandje’s proposed status report failed to address condonation, which should have been the first step to remedy the default. This omission led to Ms. Kemp’s understandable rejection of the status report proposal.
b) Held that the explanation of being involved in an urgent application and a constitutional matter loses some strength when considering the availability of other legal practitioners in the firm. However, the court emphasized that there are other relevant considerations to be weighed.
Ultimately, the court recognized that the applicants took ownership of their mistake and engaged the opposing legal practitioner promptly. Based on the above principles and considering the facts and submissions, the court determined that refusing condonation would have a significant impact on the administration of justice. As such, the court decided to grant condonation, allowing the opportunity for the filing of the answering affidavit within the specified period.
c) Furthermore, the court held that the conduct of the legal practitioner responsible for the non-compliance was somewhat mitigated by the fact that he acknowledged his mistake and promptly engaged the opposing legal practitioner about the issue. The court acknowledged that the cause of the non-compliance lies with the legal practitioner, as he deposed to the founding affidavit. Additionally, the court was not convinced that there was no chance of success in the main application.
As a result, the application for condonation was granted and the bar was lifted.