Advent Oil (Pty) Ltd v Vuletjeni Trading & Projects (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: SS Mphahlele J
• Judgment Date: 30 March 2022
• Docket Number: 4262/2019
• Hearing Date: 30 March 2022
• Citation: 2022 JDR 0917 (MN)

Mphahlele J:

[1]

This is an application for the final winding up of the respondent in terms of section 344(f) and section 345(1) of the Companies Act 61 of 1973 read

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Mphahlele J

with item 9 of schedule 5 of the Companies Act 71 of 2008, on the ground that the respondent is deemed to be unable to pay its debts.

CONDONATION APPLICATION:

[2]

The application was issued on 18 November 2019 and subsequently served on the respondent on 20 November 2019.

[3]

In terms of the Uniform Rule 6(5)(d)(i) & (ii) the respondent was required to deliver its notice of intention to oppose not less than 5 days from the date of service of the application and within 15 days thereafter to deliver its answering affidavit.

[4]

Due to the respondent's failure to deliver its papers, the applicant set the matter down for a hearing on an unopposed motion roll on 31 January 2020. On the day of the hearing, the respondent made an appearance to oppose the application, the matter was removed from the unopposed roll and accordingly referred to case management.

[5]

The judicial case management conference order directed the respondent to deliver its answering affidavit by no later than 21 February 2020 and the matter was set down for a hearing on the opposed motion court roll of 05 May 2020. Due to the declaration of the State of Disaster in relation to the COVID-19 pandemic, the hearing could not be proceeded with and the matter was referred back to case management.

[6]

The respondent failed to file its answering as directed by the judicial case management order and the applicant's attorneys requested the respondent's attorneys to file its answering affidavit by 30 October 2020.

[7]

The respondent's answering was eventually served on the applicant's attorneys on 05 May 2021.

[8]

Under the circumstances, the respondent seeks condonation for the late delivery of its answering affidavit.

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Mphahlele J

[9]

In the absence of an agreement between the parties, the court has the power in terms of Rule 27 of the Uniform Rule of Court to allow a party an extension of time to file its answering affidavit even after the expiry of the time so prescribed, on application by the party seeking an indulgence. In the exercise of these powers the court is given a wide discretion, which must be exercised judicially on consideration of the facts of each case. The guiding principles were succinctly set out in Grootboom v National Prosecuting Authority where the court stated that good cause shown is couched on the following: "the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success". It is now trite that condonation is not for a taking. [1]

[10]

In Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited [2] , the court stated that:

"[26] What calls for an explanation is not only the delay in timeous prosecution of the appeal, but also the delay in seeking condonation. An appellant should, whenever he realises that he has not complied with a rule of this court, apply for condonation without delay.[10] a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the court to understand clearly the reasons and to assess the responsibility.[11] factors which usually weigh with this court in considering an application for condonation include the degree of non- compliance, the explanation therefor [sic], the importance of the case, a respondent's interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice."

[11]

Under the circumstances, the respondent has an obligation not only to explain the late delivery of the answering affidavit, but also the delay in bringing the condonation application. Furthermore, the respondent has to establish the prospects of success in its defence against the applicant's claim.

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Mphahlele J

[12]

The respondent failed to deliver its...