An
application for condonation of non-compliance with the procedural
requirements prescribed by section 93(1) of the Constitution, albeit
opposed by the respondents, was made by the applicant.
Counsel
for the first respondent specifically argued that non-compliance with
the Constitution could not be condoned.
Despite
opposition to the application for condonation, the Court was prepared
to, and did, grant the ...
An
application for condonation of non-compliance with the procedural
requirements prescribed by section 93(1) of the Constitution, albeit
opposed by the respondents, was made by the applicant.
Counsel
for the first respondent specifically argued that non-compliance with
the Constitution could not be condoned.
Despite
opposition to the application for condonation, the Court was prepared
to, and did, grant the application. It considered the importance of
the matter in dispute and the public interest involved. The detailed
reasons for granting condonation are as follows….,.
The
Constitutional Court is imbued with a wide discretion when deciding a
constitutional matter within its jurisdiction. The wide discretion
includes the power to condone a departure from the Rules.
The
question whether the Court has power to condone non-compliance with
procedural requirements prescribed by a constitutional provision
given effect to by the Rules of the Court is a constitutional matter.
Non-compliance with the Rules, in relation to a procedural matter
provided for under the Constitution, is non-compliance with the
relevant procedural requirements prescribed by the Constitution.
In
Grootboom v National Prosecuting Authority and Anor 2014 (2) SA 68
(CC)…, the Constitutional Court of South Africa had occasion to
consider the question of the power to condone non-compliance with
court rules. It said:
“[20]…,.
It is axiomatic that condoning a party's non-compliance with the
rules of court or directions is an indulgence. The court seized with
the matter has a discretion whether to grant condonation….,.
[35]…,.
The granting or refusal of condonation is a matter of judicial
discretion. It involves a value judgment by the court seized with a
matter based on the facts of that particular case.”
In
terms of section 175(6)(b) of the Constitution, the Constitutional
Court, in deciding a constitutional matter within its jurisdiction,
has a general power to “make any order that is just and equitable.”
Consideration
of what is in the interests of justice is paramount. A court exists
to do justice. It also exists to act fairly. Ordinarily, once a court
finds that it is just and equitable to allow a matter to be brought
to it outside the procedural requirements, it follows that it would
be in the interests of justice to allow the matter to be heard.
Minister of Justice v Ntuli 1997 (3) SA 772 (CC)…,.
Where
the Constitutional Court considers that it is in the interests of
justice to condone a departure from the procedural requirements, it
is entitled to remedy non-compliance by giving an indulgence to the
defaulting party. The order granting condonation is itself a form of
a just and equitable remedy that the Court can grant in terms of
section 176(5)(b) of the Constitution.
The
consideration of what is “just and equitable” and what is in the
“interests of justice” involves giving effect to the values of
procedural justice and fairness. It is for this reason that section
176 of the Constitution provides that the Court has inherent power to
protect and regulate its own process. Allowing a departure from the
Rules is a form of the exercise of the Court's constitutional power
to regulate its own process to give effect to and achieve justice.
Rule
5 of the Constitutional Court Rules provides as follows:
“5.
Departure from rules and directions as to procedure
(1)
The Court or a Judge may, in relation to any particular case before
it or him or her, as the case may be -
(a)
Direct, authorise or condone a departure from any provision of these
rules, including an extension of any period specified therein, where
it or he or she, as the case may be, is satisfied that the departure
is required in the interests of justice;
(b)
Give such directions as to procedure in respect of any matter not
expressly provided for in these rules as appear to it or him or her,
as the case may be, to be just and expedient.
(2)
The Court or the Chief Justice or a Judge may -
(a)
Of its, his or her own accord or on application and on sufficient
cause shown, extend or reduce any time period prescribed in these
rules and may condone non-compliance with these rules;
(b)
Give such directions in relation to matters of practice or procedure
or the disposal of any appeal, application or other matter as the
Court or the Chief Justice or Judge may consider just and
expedient.”…,.
In
Marco Ltd v Newfoundland Processing Ltd (1995) 130 Nfld. &
P.E.I.R. 308, as referred to in Duhaime's Law Dictionary, the
Supreme Court of Newfoundland and Labrador, Trial Division, said:
“The
Rules of Court…, set out procedural pathways or guidelines for the
conduct of litigation. The court, in the exercise of its inherent
jurisdiction to control its own process and under the Rules
themselves, may modify the strictures of particular procedural
requirements to meet the exigencies of a specific case provided
always, of course, any such modification can be done without
encroaching on the rights of other parties to a fair and proper
hearing.”…,.
In
Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC),
the Constitutional Court of South Africa relied on the same
principle. In paragraph [39] it said:
“[39]
Flexibility in applying requirements of procedure is common in our
courts. Even where enacted rules of court are involved, our courts
reserve for themselves the power to condone non-compliance if the
interests of justice require them to do so. Rigidity has no place in
the operation of court procedures. Recently, in PFE International and
Others v Industrial Department Corporation of South Africa Ltd [2013
(1) SA 1 (CC)] this Court reaffirmed the principle that rules of
procedure must be applied flexibly. There, this Court said:
'Since
the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their own
processes, taking into account the interests of justice. It is this
power that makes every superior court the master of its own process.
It enables a superior court to lay down a process to be followed in
particular cases, even if that process deviates from what its rules
prescribe. Consistent with that power, this Court may, in the
interests of justice, depart from its own rules.'”
…,.
Once
a procedural matter is made the subject of a rule of court, and there
is a general rule giving the Court the power to condone
non-compliance with the procedural requirements, when it is in the
interests of justice to do so, the fact that the procedural matter
has its origin in the Constitution is no bar to the Court exercising
its discretionary power in terms of the Rules….,.
It
has been held that where the delay is relatively short and no
prejudice is suffered, the court is likely to grant condonation of
non-compliance with procedural requirements. See Oriani-Ambrosini MP
v Sisulu MP, Speaker of the National Assembly 2012 (6) SA 588 (CC)…,.
