Non-compliance indeed is a bar from proceedings in the absence of an application for condonation. However, in casu, the court should avoid an armchair approach, but, instead adopt a robust one for the following distinct reasons: that the appellant is a self-actor and is not familiar with the rules and is not expected to be; and that, this is a matter which involves children’s rights which are very important to the court, hence the High Court’s position as an upper guardian of all minors decided mero motu to condone the non-compliance with the rules. [8] In my considered view, the previously disadvantaged members of our society should not be placed in the same platform in certain issues due to historical factual circumstances, which are not of their making, see Hange & others v Ormann NLLP 2014 (8) 451 LCN at para (19) where I stated: is a fact that applicants belong to the previously disadvantaged group of society and some ‘It of the consequences of their socio-historical background manifest themselves in their illiteracy. This is a fact which the court, in my view, can ill afford to ignore as by doing so, it will be abdicating its judicial duty of dispensing justice fairly to all manner of people irrespective of their social background.’ [9] It is now trite that our courts have a tendency of leaning in favour of the interest of the children as a serious and determining consideration, see also JM & another v SM 2016 (1) NR 27 (HC) and McDonald v Moor (A244-2015) [2015] NAHCMD 235 (21/09/2015). [10] The second issue regarding non-compliance is failure by the Registrar’s Office to act timeously. Appellant noted his appeal on 18 January 2017. The appellant is supposed to request for a date of hearing within 40 days of noting an appeal in terms of Rule 116(5) and thereafter in terms of sub rule (9) the Clerk of Court upon receipt of the request for a set down date which date must be within 40 days. Sub rule 5 reads thus:
Non-compliance indeed is a bar from proceedings in the absence of an application for condonation. However, in casu, the court should avoid an armchair approach, but, instead adopt a robust one for the following distinct reasons: that the appellant is a self-actor and is not familiar with the rules and is not expected to be; and that, this is a matter which involves children’s rights which are very important to the court, hence the High Court’s position as an upper guardian of all minors decided mero motu to condone the non-compliance with the rules. [8] In my considered view, the previously disadvantaged members of our society should not be placed in the same platform in certain issues due to historical factual circumstances, which are not of their making, see Hange & others v Ormann NLLP 2014 (8) 451 LCN at para (19) where I stated: ‘It is a fact that applicants belong to the previously disadvantaged group of society and some of the consequences of their socio-historical background manifest themselves in their illiteracy. This is a fact which the court, in my view, can ill afford to ignore as by doing so, it will be abdicating its judicial duty of dispensing justice fairly to all manner of people irrespective of their social background.’ [9] It is now trite that our courts have a tendency of leaning in favour of the interest of the children as a serious and determining consideration, see also JM & another v SM 2016 (1) NR 27 (HC) and McDonald v Moor (A244-2015) [2015] NAHCMD 235 (21/09/2015). [10] The second issue regarding non-compliance is failure by the Registrar’s Office to act timeously. Appellant noted his appeal on 18 January 2017. The appellant is supposed to request for a date of hearing within 40 days of noting an appeal in terms of Rule 116(5) and thereafter in terms of sub rule (9) the Clerk of Court upon receipt of the request for a set down date which date must be within 40 days. Sub rule 5 reads thus:
Paulus%20v%20Tuhafeni%20(CA%2002-2017)%20[2018]%20NAHCNLD%2040%20(23%20April%202018).docx