S v Kean (CA 21 of 2001) [2001] NAHC 24 (15 June 2001)

MARGARET MALAMA-KEAN v. THE STATE C A SE NO. CA 2 1 / 2 0 01 2 0 0 1 / 0 6 / 15 Maritz, J. et Hoff, J. PRACTICE Late filing of h e a ds of argument - effect on the administration of justice considered - Rules to be applied more stringently in future - applications for condonation - only in exceptional c a s es will the error and oversight of legal practitioners and their employees be regarded as "good c a u s e" for p u r p o s es of such applications - Practice directive in the form of caveat to practitioners. CASE NO. CA 2 1 / 2 0 01 IN T HE HIGH COURT OF NAMIBIA In the matter between: MARGARET MALAMA KEAN v e r s us T HE S T A TE CORAM: MARITZ, J et HOFF, J. Heard on: 2 0 0 1 . 0 6 . 15 Delivered on: 2 0 0 1 . 0 6 . 15 (extempore) J U D G M E NT MARITZ, J .: This Court is seized with an appeal against an order of the Magistrate, Oshakati in which she granted a postponement of a criminal matter pending before her. The appellant is indicted before that court, albeit still provisionally, on several counts of fraud and theft amounting to about N$150 0 0 0. At the outset of these proceedings counsel for the appellant moved an application for condonation for the late filing of the appellant's h e a ds of argument. In support of that application he fded an affidavit in which he frankly recorded that the failure to comply with the time periods prescribed by the Rules of Court w as occasioned by his fault: He did not notice that the date on which the appeal had been set down w as a Friday and not a Monday, as he w as accustomed to. He advanced that almost all the a p p e a ls he had been briefed in previously were set down on Mondays. Expecting that it would also be the c a se in this appeal, he thought that he would have time until Monday, 11 J u ne 2 0 01 to file h e a ds of argument on behalf of the appellant. The appeal w as not set down on a Monday (as he thought) but on Friday, 15 J u ne 2 0 0 1. The Registrar's notice advising the parties of the set down, not only expressly recorded the date but also that the date falls on a Friday. Moreover, the notice drew c o u n s e l s' attention to the provisions of the relevant rule dealing with the periods within which h e a ds of argument had to be filed. In addition, a p p e a ls are often set down on d a ys other than Mondays. Bearing in mind the serious consequences that may result for a litigant whose counsel is in default due to tardiness or lack of diligence, this Court, almost invariably, granted condonation for the late filing of h e a ds in the p a st - sometimes accompanied by a postponement and, in civil c a s e s, an appropriate order of costs. However, the frequency with which this Court h as had to deal with applications of this nature recently, is so alarming that it s u g g e s ts either willful disregard for the Rules or that certain practitioners entertain the notion that condonation "is there simply for the asking". This c a se is one in point. Well knowing that an application to condone non-compliance with the rules m u st be brought as soon as the practitioner realises his or her failure, counsel for the appellant thought he would rather wait for the respondent's h e a ds of argument to ascertain from that what its attitude w as going to be about the late filing of h e a ds before launching the application. To compound matters, he apparently did not bother to contact his instructing counsel to enquire whether the respondent's h e a ds had come to hand (as they should) on Monday. Notwithstanding those h e a ds having been fded timeously, he received them from his instructing counsel only on Wednesday. Only then did he prepare the application for condonation which w as filed so late on Thursday with the Registrar of this Court that, given the other administrative work in the Registrar's office, it could not be brought to my attention prior to the calling of the roll - it w as handed up from the bar. The failure of practitioners, especially those appearing for applicants, appellants and excipients, to comply with the time periods prescribed by the Rules of Court for the filing of h e a ds of argument is hampering the administration of justice. In most c a s es it leaves the opposing party with no or inadequate time to reflect on the s o u n d n e ss or import of the s u b m i s s i o ns advanced, to research them and the authorities quoted in support thereof and to formulate a well-researched and well-considered response thereto. That, in turn, detract from the quality of the s u b m i s s i o ns m a de to the Court and the a s s i s t a n ce counsel ought to afford the Court in the q u e st for fairness and j u s t i c e. It often c a u s es prejudice to the other party that can only be a d d r e s s ed by a postponement. In criminal matters the Court does not even have the m e c h a n i sm - as it does in civil c a s es - of an appropriate or punitive cost order to adequately a d d r e ss the financial prejudice occasioned by the postponement to s u ch party. Postponements c a u se a clogging of the Court's roll to the prejudice of other litigants; they waist valuable J u d g e s' time; they unduly burden the Court's already stretched administrative resources and delay finality. Furthermore, failure to comply with the rule always inconveniences the other litigants, the J u d ge and the Court's officers. It detracts from the s t a n d a rd of practice required by the Rules and cultivated by the Court a m o n g st its practitioners. Counsel for the Respondent, Ms Imalwa, h as properly drawn our attention to the remarks m a de by Mr J u s t i ce Coleman in S v Basi, 1976(4) SA 7 99 (T) on 7 99 to 8 00 where, faced with identical problems, he said: "The Courts have in the p a st tended to be indulgent in granting condonation, mainly out of concern for the appellants who usually are not morally or otherwise to blame for the defaults of their attorneys. B ut the effect of the leniency extended by the Courts a p p e a rs to be a growing disregard for the terms of the Rules. ... In the circumstances a more stringent application of the Rule is called for. ... It is only in exceptional c i r c u m s t a n c es that the late filing of h e a ds of argument will be condoned, a nd the error or oversight of a legal practitioner or his employee will rarely, if ever, be treated as a ground for condonation." We a s s o c i a te ourselves with these remarks. Having considered the application, the merits of the appeal and, in particular the substantial prejudice that will result to the appellant if we were to strike it from the roll, we have decided to grant condonation - but do so subject to the issuing of a directive in the form of a caveat to all practitioners that, in future, this Court will strictly enforce the Rules of Court relating to the filing of h e a ds of argument a nd that, only in exceptional circumstances, will the error or oversight of a legal practitioner or his or her employee be regarded as "good c a u s e" for p u r p o s es of an application for condonation. For the Appellant: Instructed by: For the Respondent: Instructed by: ADV R. HEARTHCOTE HENNIE BARNARD & PARTNERS ADV O. M. IMALWA THE PROSECUTOR-GENERAL