1
IN
THE HIGH COURT OF SWAZILAND
a:dorothea
CASE
NO. 538/97
IN
THE MATTER BETWEEN
DOROTHEA
SUSANNA STEFFEN APPLICANT
VS
HANS
HELMUTH HERMANN STEFFEN RESPONDENT
IN
RE:
HANS
HELMUTH HERMANN STEFFEN PLAINTIFF
VS
DOROTHEA
SUSANNA STEFFEN DEFENDANT
CORAM: S.B.
MAPHALALA - A
J
FOR
APPLICANT MR SMITH
FOR
RESPONDENT MS KUPER
RULING
ON APPLICATION FOR CONDONATION FOR LATE FILING IN TERMS OF RULE 43 OF
THE HIGH COURT RULES.
The
respondent applies for an order that the late filing of the
respondent's answering affidavit in the pending rule 43 application
between the parties be condoned and that extension be granted to the
respondent to file same by 16.00 on Tuesday, 7th July, 1998.
The
respondent is represented by Mr Smith who filed heads of arguments
and the applicant is represented by Miss Kuper who strenuously
opposed this application.
I
am not going to go through the arguments advanced by the parties last
Friday afternoon as they are still fresh in our minds. I only wish to
state that there was so much venom displayed in this court by both
counsel towards each other which tendered to border on mudslinging
which in my view did not help much and tended to cloud the real
issues which brought us here.
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a:dorothea
First
of all I wish to state that the applicant is perfectly entitled to
file in terms of rule 43 of the rules of this court. It is my view
when reading her papers that there was nothing "mala fides"
on her part. According to the said rule the respondent was given
seven (7) days on which to file its answering affidavit failing which
he was ipso facto barred.
Now
I come to the respondent who seeks this extension whether he has
advanced a good cause. It is trite law that in the absence of
agreement between the parties, the court may upon application on
notice and on good cause shown make an order extending on abridging
any time prescribed by the rules. The respondent in the case in casu
has referred the court to a number of legal principles applicable to
an application for the postponement of trial. The trial judge has the
discretion must be exercised judicially and should not be exercised
capriciously or upon any wrong principle, but for substantial
reasons. The application for postponement must be made timeously, as
soon as the circumstances which might justify such an application
becomes known to the applicant where, however, fundamental fairness
and justice justifies a postponement, the court may in appropriate
case among such an application for postponement if the application
was not timeously made. An application for postponement must always
be bona
fide
and not used simply as a tactical manoevore for the purpose of
obtaining an advantage to which the applicant is not legitimately
entitled. Considerations of prejudice will not ordinarily constitute
the dominant component of the total structure in terms of which the
discretion of the court will be exercised what the court has
primarily to consider is whether any- prejudice caused by a
postponement to the adversary of the applicant can fairly be
compensated by an appropriate order for costs.
The
court should weigh the prejudice which will be caused to the
respondent in such an application if the postponement is granted
against the prejudice which will be caused to the applicant if it is
not. These are the legal principles applicable in this case.
I
have considered the papers filed in respect of rule 43 of the
applicant and the application by the respondent for condonation. I
have also considered the arguments submitted before me on Friday. It
is my considered view, that in as much as applicant is entitled to
her remedy in terms of rule 43 of the rules the respondent has shown
good cause for the grant of an extension. The facts brought before me
are such that I am persuaded to hold that the respondent in the time
given by the rules was not prepared to prosecute his case. It is
common cause that the respondent is suffering from paralysis and that
he had undergone a serious back operation and was confined to bed or
wheel chair and was not able to travel. I am persuaded by respondents
counsel that the logistics of consulting respondent within the
prescribed time were cumber some if not impossible.
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a:dorothea
For
these reasons I grant the respondent condonation and hold that an
extension be granted to him to file opposing papers on Tuesday, 7th
July, 1998.
I
hold further that costs to be costs in the cause (see Sher vs Covs
Frenket & Co. 1927 T.
P.
D.
9).
S.B.
MAPHALALA
ACTING
JUDGE
