MARGARET
MALAMA-KEAN v. THE STATE

CASE
NO. CA 21/2001

2001/06/15

Maritz,
J. et
Hoff,
J

PRACTICE
Late filing of heads of argument - effect on the administration of
justice considered - Rules to be applied more stringently in future -
applications for condonation - only in exceptional cases will the
error and oversight of legal practitioners and their employees be
regarded as "good cause" for purposes of such e directive
in the form of caveat
to
practitioners.
.

CASENO.
CA 21/2001

IN
THE HIGH COURT OF NAMIBIA

In
the matter between: MARGARET
MALAMA KEAN versus
THE
STATE

CORAM:
MARITZ,
J et
HOFF,
J.

Heard
on: 2001.06.15

Delivered
on: 2001.06.15 (extempore)

JUDGMENT

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$150 000.

At
the outset of these proceedings counsel for the appellant moved an
application for condonation for the late filing of the appellant's
heads 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 was occasioned
by his fault: He did not notice that the date on which the appeal had
been set down was a Friday and not a Monday, as he was accustomed to.
He advanced that almost all the appeals he had been briefed in
previously were set down on Mondays. Expecting that it would also be
the case in this appeal, he thought that he would have time until
Monday, 11 June 2001 to file heads of argument on behalf of the
appellant.

The
appeal was not set down on a Monday (as he thought) but on Friday, 15
June 2001. 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 counsels' attention to
the provisions of the relevant rule dealing with the periods within
which heads of argument had to be filed. In addition, appeals are
often set down on days 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
heads in the past - sometimes accompanied by a postponement and, in
civil cases, an appropriate order of costs. However, the frequency
with which this Court has had to deal with applications of this
nature recently, is so alarming that it suggests either willful
disregard for the Rules or that certain practitioners entertain the
notion that condonation "is there simply for the asking".
This case is one in point. Well knowing that an application to
condone non-compliance with the rules must 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 heads of argument
to ascertain from that what its attitude was going to be about the
late filing of heads before launching the application. To compound
matters, he apparently did not bother to contact his instructing
counsel to enquire whether the respondent's heads had come to hand
(as they should) on Monday. Notwithstanding those heads having been
fded timeously, he received them from his instructing counsel only on
Wednesday. Only then did he prepare the application for condonation
which was 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 was 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 heads of argument is
hampering the administration of justice. In most cases it leaves the
opposing party with no or inadequate time to reflect on the soundness
or import of the submissions 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 submissions made to the Court and the
assistance counsel ought to afford the Court in the quest for
fairness and justice. It often causes prejudice to the other party
that can only be addressed by a postponement. In criminal matters the
Court does not even have the mechanism - as it does in civil cases -
of an appropriate or punitive cost order to adequately address the
financial prejudice occasioned by the postponement to such party.
Postponements cause a clogging of the Court's roll to the prejudice
of other litigants; they waist valuable Judges' 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 Judge and the Court's
officers. It detracts from the standard of practice required by the
Rules and cultivated by the Court amongst its practitioners.

Counsel
for the Respondent, Ms Imalwa, has properly drawn our attention to
the remarks made by Mr Justice Coleman in S v
Basi, 1976(4)
SA 799 (T) on 799 to 800 where, faced with identical problems, he
said:

"The
Courts have in the past 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. But the effect of the leniency extended by the Courts
appears 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 circumstances that the late filing
of heads of argument will be condoned, and the error or oversight of
a legal practitioner or his employee will rarely, if ever, be treated
as a ground for condonation."

We
associate 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 heads of argument and
that, only in exceptional circumstances, will the error or oversight
of a legal practitioner or his or her employee be regarded as "good
cause" for purposes of an application for condonation.