This
is an application for condonation for the late noting of an application for a
stay of execution in terms of Rule 348A.
In
their application, the applicants explain that they were of the view that the
debt to the respondents was being serviced by the principal debtor. They
are co-principal debtors in the matter. The first applicant states that
the writ of execution in the matter was served on the 5th of
December 2012 and the application for stay of execution in terms of Rule 348
was made on 2 August 2013.
In
terms of the Rule, the application should have been made within ten days after
the service upon the execution debtor of the notice in terms of Rule
347. That would mean the application to stay execution should have been
made in December 2012. The application was only made in August 2013. The
applicant's founding affidavit does not explain what then happened between
December 2012 and August 2013, the period of the delay, he simply states that
the principal debtor and the respondent have always engaged each other in an
attempt to solve the matter. He also says he had always been assured by
the principal debtor that the matter was under control. He alleges that he
thus did not wilfully neglect to make the application within the prescribed
time limits. Of particular importance is that nothing of substance turns
on the applicant's averments. The explanation for the delay must be
reasonable, and reasonableness can only be ascertained from the circumstances
of the case. There is nothing reasonable that the applicant purportedly
did upon being served with the Notice of Attachment. From his own
affidavit, the applicant fails to proffer a reasonable explanation for the
delay.
It
is trite law that in an application for condonation the court has to consider
the reasonableness of the explanation for the delay and the defence offered on
the merits of the case. Such was the finding of the court in the case of Forestry Commission v Moyo, the learned CHIEF
JUSTICE GUBBAY…, stated thus:
“One
only has to have regard to the broad factors which a court should take into
account in deciding whether to condone such non-compliance to appreciate the
substantive application to be made. They are:-
1) That
the delay involved was not inordinate, having regard to the circumstances of
the case.
2) That
there is a reasonable explanation for the delay.
3)
That the prospects of success should the application be granted are good, and
the possible prejudice to the other party should the application be granted.
None of
the above principles have been addressed in the applicant's affidavit.
The
applicant does not tell the court what precluded him from applying for the
suspension of the sale in execution from December 2012 to August
2013. Neither does he proffer a repayment plan to convince the court that
the respondent's dues will indeed be paid so that the court can be in a view to
assess the reasonableness of the offer, as this has a bearing on applicant's
prospects of success, as well as weighing the prejudice likely to be suffered
by the respondent. Not only does the applicant fail to explain the delay
but he, further, fails to make an offer towards the liquidation of the debt to enable
the court to appreciate that the applicant is indeed interested and committed
to settling the amount owing to the respondent.
It
is my view, therefore, that the application for condonation does not meet the
test applied in such cases and is thus devoid of merit.
I
accordingly dismiss the application with costs.
