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[2018] ZAFSHC 53
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Odendaal and Another v Nutigrun (Pty) Ltd (5603/2017) [2018] ZAFSHC 53 (19 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 5
603/2017
In
the matter between:
WILLEM
ADRIAAN
ODENDAAL
1
st
Applicant
ANNA
CATHARINA NEL
ODENDAAL
2
nd
Applicant
and
NUTIGRUN
(PTY)
LTD
Respondent
HEARD
ON:
29 MARCH 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
19
APRIL 2018
[1]
This is an opposed application for condonation of the late filing of
the opposing affidavit. The parties agreed (which
agreement was
made an Order of Court) that the respondent must file the affidavit
not later than 18 December 2017. This Order
was not complied
with by the applicants and the affidavit was only filed on 30 January
2018.
[2]
It must be emphasised that an application for condonation is not a
mere formality. Uniform Rule 27(1) provides that in
the absence
of an agreement between the parties the court may on application make
an order to extend or abridge any time prescribed
by the rules or
order of the court. However good cause must be shown that the
non-observance of the Rule is excusable.
The Rules of Court
play an important role in ensuring proper functioning of the
-courts. In matters of this nature the court
has a wide
discretion which must be exercised judicially upon consideration of
all facts.
[3]
The requirements for condonation are that the applicant must file an
affidavit dealing satisfactorily with the reason(s) for
the delay.
This means that sufficient explanation must be provided to enable the
court to understand how did the delay come
about.
[4]
The first applicant deposed to an affidavit dealing with this
aspect. The application together with annexures was served
on
him by the sheriff. Annexures “FAZ”, “AA1”
and “AA2” were not annexed to the application.
Letters exchanged between the attorneys requesting the annexures did
not yield any results. As one of the measures to obtain
the
documents, the applicant’s attorneys launched an application in
terms of Rule 35 (12). Despite diligent search
a complete
application was found at the Master’s Office on 26 January
2017. Thereafter followed the process of drafting
of the
papers, sending them to Marquard to be commissioned and to be
returned to Bloemfontein. The documents had to be sent
to
Marquard because of the failing health of the second applicant who
could not travel to Bloemfontein.
[5]
In opposition, it is the version of the respondent that the documents
that the applicant is referring to have always been in
the possession
of the first applicant. They were used in the application for
summary judgement granted against the first
applicant. These
were also sent to the previous attorney. Further that the
applicant’s attorneys received the
complete application on 23
November 2017.
[6]
In the interests of justice, the parties should not easily be denied
the opportunity to ventilate their disputes before the
court.
The first applicant has provided an explanation dealing with how the
delay came about. It is not unthinkable
that the application
would have been missing the annexures as mentioned. It is
important to insist on the correct annexures
before responding to the
allegations. It will be irresponsible to assume the content of
the annexures without reading them.
The period between 16
December to 15 January is normally the time that the legal fraternity
literally close shop. Lastly
the period of the delay is
not inordinately long to conclude that the applicant’s
attorneys dealt with this matter in reckless
manner.
[7]
The second aspect is that the applicant must satisfy the court that
he has a
bona
fide
defence or that the action is not ill founded. This means that
the applicant must show that his defence is based on facts
which if
proved would constitute a defence. The matters turns on
whether the sequestration order will be beneficial
to the creditors.
This matter can be ventilated properly when considering the entire
application and other procedures that
can achieve the same result.
To that extent, I am of the view that there is a
bona
fide
defence. I am particularly concerned by the prejudice that can
be suffered by the applicants in the event the application
is
unsuccessful. They are octogenarians who stand to lose
everything.
[8]
For the aforegoing reasons, I am of the view that the costs must
follow the results.
[9]
Accordingly, I make the following order:-
9.1. The application is
granted with costs.
___________________
M. A. MATHEBULA, J
On
behalf of the appellants:
Adv. J. M. C. Johnson
Instructed
by:
Lovius Block
BLOEMFONTEIN
On
behalf of the respondent:
Adv. A. Berry
Instructed
by:
F J Senekal incorporated
BLOEMFONTEIN
/roosthuizen