Application for condonation [8] The application is accompanied by an affidavit deposed to by Mr. Mbaeva, the appellant’s legal practitioner of record. The main reason advanced for the late filing of the heads is that the record of proceedings had been misfiled by his office and that the said fact hamstrung his ability to file the heads of argument timeously. The misfiling was ascribed to human error and it was also submitted that no prejudice enured to any of the parties as a result of the late filing of the heads of argument. [9] Mr. Khumalo, for the respondent, opposed the application for condonation. His main contention was that there was no full and cogent explanation for the with the rules of court in this instance. He argued that condonation should not be granted merely for the asking, particularly in circumstances where the defaulting party does not take the court fully in its confidence by stating fully and frankly the circumstances in which the delay took place. He argued further that the appellant had not, in his application dealt at all with the issue of prospects of success on appeal. [10] Mr. Mbaeva, whilst admitting that more could have been disclosed in the affidavit filed in support of the application for condonation, submitted that the appellant was under no obligation to deal with the issue of prospects of success as that issue does not form part of an enquiry such as that facing the court in the instant matter. I now turn to consider the question whether the appellant has made a case for condonation and whether all the necessary allegations entitling him to the grant of the order have been made. [11] It would appear to me that the provisions of rule 55 apply to this matter. The said rule reads as follows: court or the managing judge may, on application on notice to every party and on ‘The good cause shown, make an order extending or shortening a time prescribed by these rules or by an order of court for doing an act or taking a step in connection with proceedings of any
Application for condonation [8] The application is accompanied by an affidavit deposed to by Mr. Mbaeva, the appellant’s legal practitioner of record. The main reason advanced for the late filing of the heads is that the record of proceedings had been misfiled by his office and that the said fact hamstrung his ability to file the heads of argument timeously. The misfiling was ascribed to human error and it was also submitted that no prejudice enured to any of the parties as a result of the late filing of the heads of argument. [9] Mr. Khumalo, for the respondent, opposed the application for condonation. His main contention was that there was no full and cogent explanation for the with the rules of court in this instance. He argued that condonation should not be granted merely for the asking, particularly in circumstances where the defaulting party does not take the court fully in its confidence by stating fully and frankly the circumstances in which the delay took place. He argued further that the appellant had not, in his application dealt at all with the issue of prospects of success on appeal. [10] Mr. Mbaeva, whilst admitting that more could have been disclosed in the affidavit filed in support of the application for condonation, submitted that the appellant was under no obligation to deal with the issue of prospects of success as that issue does not form part of an enquiry such as that facing the court in the instant matter. I now turn to consider the question whether the appellant has made a case for condonation and whether all the necessary allegations entitling him to the grant of the order have been made. [11] It would appear to me that the provisions of rule 55 apply to this matter. The said rule reads as follows: ‘The court or the managing judge may, on application on notice to every party and on good cause shown, make an order extending or shortening a time prescribed by these rules or by an order of court for doing an act or taking a step in connection with proceedings of any
Doeseb%20v%20The%20State%20(CA%2025-2015)%20[2015]%20NAHCMD%20199%20(25%20August%202015).docx