MAKARAU JP: The first respondent is represented by
the Civil Division of the Attorney-Generals' Office. In application proceedings
between the parties, the respondent, through its representatives, was served
with the applicant's heads of argument on10 September 2008. In terms of the
rules of this court, the respondent had to file its heads within ten days of
being served with the applicant's heads. No heads were filed on behalf of the
first respondent until the morning of the set down date, that is on 11 February
2009.
In
an application for the uplifting of the automatic bar against first respondent,
Mr Mutsonziwa declined to have the
matter postponed for the purposes of filing an affidavit explaining the reasons
for the delay. He opted to make an oral application before the commencement of
the hearing. He then proceeded, much to the discomfort of Adv Zhou and myself, to testify as to the difficulties that the officers
in the Attorney -General's Office are experiencing currently due to the
economic situation prevailing in the country. I say the testimony from Mr Mutsonziwa in this regard was much to
our discomfort as evidence led from the bar places both the court and the other
legal practitioners at a distinct disadvantage in that it can neither be
countered nor tested by way of cross-examination. On the other hand, the court
and the other lawyer are compelled to accept to accept the evidence for to
decline to do so has the effect of calling into question the integrity of the
lawyer testifying.
It
is trite that where legal practitioners wish to place facts before the court,
even facts that they believe are notorious, they must do so by way of
affidavit, as an affidavit is sworn testimony. Where a response to such facts
is deemed necessary, then an affidavit refuting the facts in the first
affidavit is filed. Anything short of this procedure in my view will allow the proceedings to degenerate into
social exchanges between counsel that are neither evidence nor submissions
based on evidence, something that the legal practitioners can engage in outside
the courtroom.
In
explaining the delay of over 5 months that occurred in this matter, Mr Mutsonziwa advised that he was not
given the file of the matter in time to enable him to settle the necessary
heads of argument. He further advised that there is an acute shortage of staff
in the attorney-general's office, that staff attendance at work is erratic and
control of support staff has become difficult in the circumstances. He reports
that the incidence of locked offices without staff in sight is now rampant and is
common knowledge in the legal circles.
I
have repeated in detail the report by Mr
Mutsonziwa for the benefit of the Attorney-General, to whom I shall make
this judgment available. I make no finding as to whether or not I believe Mr Mutsonziwa in this regard.
The
report in my view paints a grim picture of the Attorney- General's office and
one in my view, if the reports by Mr Mutsonziwa
are true, that should be corrected with all necessary speed. The Office of the
Attorney -General competes on an equal footing with all other law firms in the
land. It is not exempted from abiding by
the rules of court. There is in my view no basis upon which this court can
accommodate excuses from this office that it does not in the ordinary course of
events, accommodate from any other firm of lawyers. To accept from the legal
profession as reasonable the excuses that Mr
Mutsonziwa attempted to proffer in this matter in my view will be to open
the entire system to disorder and erratic filing of pleadings to an extent
where the system may collapse. Courts that bend over backwards to accommodate
excuses for ineptitude and complete disregard of its rules by the office of the
Attorney- General open themselves up unnecessarily to suggestions that they are
partial to the executive, the clients that are solely represented by this
office.
In
my view time is nigh that the office of the Attorney- General shapes up or
faces the legal consequences of its failure to discharge its constitutional
duty efficiently and within the rules of the court.
Turning
to the merits of the application, it is trite that in considering an
application of this nature, the court has a discretion in the matter. In addition
to considering the reasonableness of the excuse for the delay, the court also takes
into account various factors including the importance of the case, the
respondent's interest in reaching finality in the matter, the convenience of
the court and the avoidance of unnecessary delay in the administration of
justice. (See United Plant Hire (Pvt) Ltd
v Hill and Others 1976 (1) SA 717 (A) at 720).
The
main application in this matter is dealing with an alleged agreement of 2004. This
was concluded five years ago and according to the applicant's papers, the Permanent
Secretaries in the first respondent's ministry have changed twice already. In
my view, it is not it the interests of any of the parties that this matter be
dragged further by the granting of a technical default judgment in favour of
the applicant which may be set aside by another court.
I also consider that the issues raised in the
main application are important and that the matter should be resolved on its
merits rather than on the technical basis that the office of the Attorney-
General has been found wanting in terms of complying with the rules of court.
Therefore,
despite my findings against the first respondent's legal practitioners, I would
use my discretion to grant the application for condonation.
In
the result, I make the following order:
1.
The late filing of the first respondent's heads is
hereby condoned.
2.
The first respondent shall bear the costs of the
application.
3.
The Registrar of this court shall cause a copy of this
judgment to be handed over to the Attorney-General.
Manase & Manase, applicant's legal
practitioners.
Civil Division of the
Attorney -General's Office, 1st
respondent's legal practitioners.
