This
is an application for condonation of late filing of a notice of opposition in
case number HC2988/12.
The
facts are as follows:-
On
4 September 2012, the first respondent (as applicant), in case number HC2988/12,
filed with this court a chamber application accompanied by a certificate of
urgency. The first respondent, relying on Rule 242(2)(c) of this court's Rules
sought a provisional order ex
parte. The matter was placed before a judge in chambers and
was granted on 6 September 2012.
Subsequently,
on 13 September 2012, the first applicant was served, personally, with the
provisional order. Instead of filing a notice of opposition, the first
applicant's attorneys, Messrs G. N. Mlotshwa and Company, appealed the
provisional order to the Supreme Court. Meanwhile, the respondents set
down case number HC2988/13 on the unopposed roll of the 7th February
2013. The applicants were barred by operation of Rule 233(3) of the High
Court Rules, 1971.
The
applicants then filed this application seeking condonation of late filing of a
notice of opposition and that costs be costs in the cause.
The
respondents filed a notice of opposition on 20 February 2013 and the first
applicant filed an answering affidavit on 6 March 2013….,.
The
first applicant's application is based on the following factors;
1.
That he acted timeously by instructing a legal practitioner to defend the
matter.
2.
That the legal practitioners adopted an incorrect procedure.
3.
That the inability of the legal practitioners to follow the correct procedure
in prosecuting the applicant's instructions should not be visited on him.
4.
That the first applicant's prospects of success on appeal are good in that
firstly, the respondents adopted an incorrect procedure which was grossly
inappropriate and irregular. It was submitted that the respondents should
have issued summons instead of proceeding by way of an urgent chamber
application since the various claims sounded in money. Reliance was placed
on Ex Combatants Security Co v
Midlands State University
HH80-06; William v
Turnstall 1949
(3) SA 835; and Miller v
Roussot 1975
(1) RLR 324.
5.
That there is no proof placed before the court in case number HC2988/12 that
the various amounts claimed are due and owing. Therefore, the first
applicant has a valid defence against the claims made by the respondents in
case number HC2988/12.
The
application was opposed on the following grounds;
1.
The 1st applicant was fully aware of what he was required to do if
he intended to oppose the provisional order in that the provisional order was
served on him personally and it clearly stated that he was required to file
opposing papers supported by affidavits within ten days from the date of
service.
2.
The 1st applicant decided to note an appeal at the Supreme
Court. This was a choice he consciously made and that it turned out to be
a wrong decision should not be used as a ground for seeking condonation.
3.
The decision to commence the 1st respondent's case by way of action
cannot be a ground for allowing the 1st applicant to re-open the
case since these issues should have been raised in a proper way as provided for
by the provisional order and the Rules of this court.
4.
The claims made against the applicants are clearly set out and supported by
vouchers signed by the applicants. They are not claims for damages but
rather repayment of the company's money unlawfully taken by the 1st
applicant.
5.
The 1st applicant's founding affidavit does not reveal a defence or
any disputes of fact.
6.
The 1st applicant's prospects of success are non-existent in that he
failed to produce proof of authorization by way of a Board resolution.
The
sole issue that falls for determination is whether the first applicant has
established the requirements for an application for condonation.
The
broad principles that guide the court in an application for condonation were
set out in the case of United
Plant Hire (Pty) Ltd v Hills
& Ors 1976 (1) SA 717 (A) in the following words;
“It
is well settled that in considering applications for condonation, the court has
discretion, to be exercised judicially, upon a consideration of all of the
facts; and that in essence it is a question of fairness to both sides. In
this enquiry, relevant considerations may include;
(i)
The degree of non-compliance with the Rules;
(ii)
The explanation therefore;
(iii)
The prospects of success on appeal;
(iv)
The importance of the case;
(v)
The respondent's interest in the finality of his judgment;
(vi)
The convenience of the court; and
(vii)
The avoidance of unnecessary delay in the administration of justice.”
In
Bishi v
Secretary for Education
1989 (2) ZLR 240 (HC), it was held, per CHIDYAUSIKU J…, that the following are
the factors to be taken into account in considering whether good cause has been
shown:
“(a)
The degree of non-compliance with the Rules;
(b)
The explanation therefore;
(c)
The prospects of success on the merits;
(d)
The importance of the case;
(e)
The convenience of the court;
(f)
The avoidance of unnecessary delay in the administration of justice.”
In
Kombayi v
Berkout 1988
(1) ZLR 53 (SC), it was stated that “the broad principles the court will follow
in determining whether to condone the late noting of an appeal are:
(i)
The extent of the delay;
(ii)
The reasonableness of the explanation for the delay; and
(iii)
The prospects of success.
If
the tardiness of the applicant is extreme, condonation will be granted only on
his showing good grounds for the success of his appeal.”
Applying
these principles to the facts, I find that the extent of the delay in casu is
considerable. The first applicant became aware of the provisional order in
September 2012 and he filed this application on 7 February 2013 - a period of
six months. The degree of non-compliance with the Rules is phenomenal in
that in terms of the Rules, the first applicant was supposed to file a notice
of opposition within ten (10) days from the date of service but he only acted
after a period of approximately 180 days.
In
my view, this delay is clearly inordinate.
The
explanation or reason advanced for the delay is that the legal practitioner who
was briefed to prepare the notice of opposition decided, on his own, to mount
an appeal against a provisional order.
That
this procedure is incorrect is beyond question.
It
was further submitted that since the appeal was filed before the dies induciae expired, the
inescapable conclusion is that the applicant acted timeously in his desire to
defend the matter.
It
was contended, on behalf of the applicant, that the issue is whether the
inability of the legal practitioners to follow the correct procedure in
prosecuting the applicant's instructions should be visited on the applicant.
Counsel
for the first applicant submitted that the court should do justice between the
parties, and, in casu,
the errors of the applicant's erstwhile legal practitioners should not be
visited upon the applicant.
The
law is clear on this point.
In
Bishi v
Secretary for Education
1989 (2) ZLR 240 (HC), it was held that “while the courts are very reluctant to
visit the client with the sins of his legal practitioner, there has to be a
limit beyond which the courts will not go.”
See
also Saloojee & Anor NNO v
Minister of Community
Development 1965 (2) SA 135 (A) where STEYN CJ remarked as
follows:
“There
is a limit beyond which a litigant cannot escape the results of his attorney's
lack of diligence or the sufficiency of the explanation tendered. To hold
otherwise might have a disastrous effect upon the observance of the Rules of
this court. Considerations ad
misericordiam should not be allowed to become an invitation to
laxity. In fact, this court has lately been burdened with an undue and
increasing number of applications for condonation in which the failure to
comply with the Rules of this Court was due to neglect on the part of the
attorney. The attorney, after all, is the representative whom the litigant
has chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant should be
absolved from the normal consequences of such a relationship, no matter what
the circumstances of the failure are.”
See
also Kombayi v
Berkout 1988
(1) ZLR 53 (SC).
In
the present case, the applicant admitted that he was personally served with the
provisional order in September 2012. That order clearly spells out what
the applicant was required to do. The applicant is not some simpleton but
a businessman who should have read the provisional order.
There
is no affidavit from the erstwhile legal practitioner acknowledging the error.
The
lawyer being, an agent, would not have taken the decision to appeal mero motu without
instructions from the applicant. Further, the lawyer would not have crafted
grounds of appeal before taking instructions from the applicant. It is at
this stage that the applicant should have asked his lawyer why he was not
making affidavits and signing them within ten (10) days from the date they
received the provisional order. If this question was asked and the lawyer
had given some explanation, this should have been mentioned in the founding
affidavit. This was not done. Instead, in paragraph 5(b) of his
founding affidavit, the applicant states that he gave the lawyers “specific
instructions to defend the matter” and he was assured that the matter “was
being defended.” He stated that he did not enquire as to the “exact manner
in which” his defence was prosecuted as that is the exclusive province of
attorneys. It is clear that even if the legal practitioner was negligent,
there is also evidence of total inaction on the part of the applicant. No
explanation has been tendered for that inaction.
For
these reasons, I find that the explanation given for the delay is totally
unsatisfactory.
I
now turn to the prospects of success on the merits.
In
his founding affidavit, the applicant simply states that he had “a valid and
lawful defence” to case number HC2988/12 without stating what exactly his
defence is – see paragraph (f)(i). In paragraph (h), he contended that
case number HC2988/12 consists of “claims for damages, or, put differently,
claims that must be pursued through a summons action.” He further
submitted that this kind of relief cannot be obtained through an application
procedure, let alone an urgent chamber application.
In
my view, case number HC2988/12 is not about a claim or claims for damages but
is based on specific documents signed by the applicant acknowledging receipt of
all amounts he took from the company without authorization by the
company. Specific allegations were made that the applicant paid school
fees for his son in South Africa using company funds. There are other
numerous examples of such unlawful conversion of funds to personal
use. The claims are for refund of such amounts. All that was required
of the applicant was to file proof of authorization in the form of a company
resolution. This he has not done and one wonders what sort of defence the
applicant is talking about. What is clear though, from the papers, is that
whatever defence he is harping on is mala
fide.
It
follows, therefore, that the applicant's prospects of success on the merits
cannot be described as good.
Accordingly,
it is ordered that the application be and is hereby dismissed with costs.
