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[2017] ZAGPPHC 362
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Ex parte: Nothnagel; In re: Nothnagel v Law Society of the Northern Province (74204/2015) [2017] ZAGPPHC 362 (10 March 2017)
DATE
SIGNATURE
/SG
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
10 March 2017
CASE
NO: 74204/2015
In
the matter between:
DIRK
JACOBUS RIVE
NOTHNAGEL
APPLICANT
In
re:
DIRK
JAKOBUS RIVE
NOTHNAGEL
APPLICANT
And
THE
LAW SOCIETY OF THE NORTHERN
PROVINCE
RESPONDENT
JUDGMENT
MAKHOBA,
AJ
[1]
In this matter before us the applicant is the respondent in the main
application and the respondent the applicant in the main
application.
[2]
The application is based on the provisions rule 27 of the Uniform
Rules of Court. It is about condonation which
applicant
seeks for the late filing of its answering affidavit to respondent's
application for his re-admission as an attorney.
[3]
The applicant was represented by Mr Smith whereas the respondent
represented himself. This application has been separated from
the
main action. The main action will be heard separately.
[4]
T
he applicant had been
practising as an attorney on his own account since August 2001 under
the name and style
of Dirk
Nothnagel until on 23 April 2010 when he was suspended
from practice. On 24 August 2010 his name
was removed from the roll
of practicing attorneys. The applicant lodged an application to be
re-admitted as an attorney which application
was set down for hearing
to 1 August 2016. On 30 May 2016 the court ordered the applicant to
deliver its answering affidavit in
the main application within (15)
fifteen days from the date of the order. The applicant did not comply
with this court order and
only served the relevant answering
affidavit on the respondent only 29 July 2016 one court day before
the hearing of the main application.
The applicant was informed by
the Judge's clerk that the matter had become opposed and it would be
postponed
sine
die.
[5]
The crux of the matter before us is the condonation for the late
filing of applicant's answering affidavit. The application
is opposed
by the respondent.
[6]
In explaining the delay for filing the answering affidavit on
time counsel for the respondent gave the reasons as follows:
6.1
The papers the applicant had to go through to refute
respondent's assertions in his founding affidavit were too
voluminous.
6.2
The importance and nature of the main application which may
adversely affect the administration of attorneys profession should
the
court not hear the applicant's submissions about this matter.
6.3
In his address to us counsel for the applicant conceded that
applicant erred by not informing the respondent timeously of the
delay
in filing the answering affidavit.
[7]
In opposing the application respondent submitted that: -
7.1
The respondent has been in possession of a full set of the
voluminous papers in the matter since April 2016.
7.2
. The Attorney's Fidelity Fund has been m possession of the
respondent's affidavit since May 2016.
7.3
Respondent was at all times represented by senior attorneys
who deal with these types of applications on a daily basis and that
there is no valid excuse for the respondent's failure to file its
answering affidavit timeously.
7.4
Respondent failed to state when it realised that it would be
unable to comply with the court order and that steps taken if any to
address the delay.
7.5
On 22 June 2016 respondent enrolled the matter on the
unopposed roll. Still there was no reply or request for time
extensions to
the respondent's attorneys or record.
7.6
Respondent blatantly disregarded a direct court order to
deliver the answering affidavit by a certain date and thereafter
refused
to take steps to mitigate the prejudice of such late
delivery.
[8]
This application before us 1s based on rule 27(1) which
provides as follows:
"27.
Extension of time and removal of Bar and condonation
(1) In the absence of
agreement between the parties, the court may upon application on
notice and on good cause shown, make an order
extending or abridging
any time prescribe by the rules or by an order of court fixed by an
order extending or abridging any time
for doing any act or taking any
step in connection with any proceedings of any nature whatsoever upon
such terms as to it seems
meet."
[9]
As stated above the issue before us is to determine whether
applicant has indeed established that it is entitled to the relief
that
it seeks.
[10]
The use of the word "may" in rule 27(1) denotes that
the court has a discretion to grant or not to grant condonation. In
United Plant Hire (Pty) Ltd v Hills and Others
1976 (1) SA 717
(A) 720E-F HOLMES, J said:
"It is well settled
that in considering application for condonation, the court
has a discretion
to be exercised
judicially upon a consideration of all of the
facts; and that in
essence it is a question of fairness to both
sides. In this enquiry, relevant considerations may include the
degrees of non-compliance
with the rules, the explanation therefore,
the prospects of success on appeal, the importance of the case, the
respondent's interest
in the finality of his judgment, the
convenience of the court and the avoidance of unnecessary delay in
the administration of justice."
In
Smith NO v Brummer NO and Another
1954 (3)
SA
352
at
358 the court summarised what needs to be taken into account as
follows: -
(i)
Whether a reasonable explanation has been given for the neglect.
(ii)
Whether the application is
bona fide
and not brought with the
intention to delay the other party's claim.
(iii)· Whether
there is absence of reckless or wilful neglect of the court rules.
(iv)
Whether or not applicant's case is ill founded.
(v)
Whether there is prejudice, such cannot be compensated with a proper
costs order.
See
also
Van Wyk v Unitas Hosptal and Another (open Democratic
Advice centre as
amicus curiae)
[2007] ZACC 24
;
2008 (2) SA 472
at
33;
Meintjies v HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 263-264.
In
Uitenhage Transitional Local Council v South African Revenue
Service
2004 (1) SA 292
(SCA) paragraph 6 the court
said:
"Condonation is not
to be had merely for the asking; a full detailed and accurate account
of the causes of the delay and their
effect must be furnished so as
to enable the court to understand clearly the reasons and to assess
the responsibility, it must
be obvious that if the non-compliance is
time related then then date, duration and extent of any
obstacle on which
reliance is placed must be spelled out."
[11]
Furthermore the applicant must show with the evidence at its
disposal that he is entitled to the relief that he seeks. See also
Bayat and Others v Hansa and Another
1955 (3) SA 547
(A).
[12]
Whether the application is
bona
fide
During
his address to the court Counsel for the applicant conceded that
failure to inform the respondent of the delay cannot be
justified.
However, in my view, there is nothing on the papers that shows that
the applicant was not
bona fide
and intentionally delayed the
other party's application.
[13]
Absence of reckless or wilful neglect of the court rules
Counsel
for the applicant submitted that due to the respondent's denial that
he was indebted to some of the creditors the Attorney's
Fidelity Fund
had reimbursed, applicant had to sift through a number of papers and
compile a detailed response to the respondent's
founding affidavit.
Considering the response of the applicant to the respondent's
affidavit I find it difficult to ... that the
applicant wilfully
neglected the provisions of rule 27. It is clear to me that for the
applicant laboriously prepared the answering
affidavit was time
consuming the applicant was not in flagrant and gross delay.
See
Ferreira v Ntshingila
1990 (4) SA 271
(A)
[14]
Whether or not applicant's case is
ill-founded
The
applicant's answering affidavit to the respondent's founding
affidavit is supported by a number of annexures and affidavits.
The
allegations made against the respondent in the answering affidavit
are very grave and serious if they are accepted in the main
application the respondent is likely to fail in his application
and the applicant in this application is likely to succeed
in the
main application. If this application fails it may adversely affect
the regulation of attorneys practice.
[15]
Reasonable
explanation
Taking
all the factors, submissions by both parties as well as the volume of
the record in this matter before us I am of the view
that the
applicant gave us a reasonable explanation. In
Van Wyk v Unitas
Hospital and Another supra
the court on paragraph 33 said
"prospects of success pale into insignificance where, as here,
there is an inordinate delay
coupled with the absence of a reasonable
explanation for the delay".
[16]
Taking the above into account, it is my view that the
applicant complied with all the requirements listed in Rule 27 and
also the
requirements listed in
Smith NO v Brummer NO and
Another
supra.
Furthermore, taking all
the relevant factors cumulatively the application for
condonation is worthy to be considered and,
in my view, it must
succeed.
[17]
Finally the matter of costs. The main application is still to
be heard by another court. I am of the view that a costs order should
be argued and finalised at the hearing of the main application.
[18]
In the result: -
(a)
The application for condonation is granted.
(b)
Costs are reserved for the main application.
DMAKHOBA
ACTING
JUDGE OF
THE
GAUTENG DIVISION,
PRETORIA
I
agree, and it is so ordered
PMAB
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
Appearances
Heard
on
:
3 March 2017
Counsel
for the Applicant
:
In person
Counsel
for
the
Respondent
:
Adv. PH Smith
Instructed
by
:
Rooth and Wessels Inc. .
Date
of
Judgment
:
10 March 2017