Steelite Towbar and Silencer Centre v Autofit Fitment Centre CC

• Jurisdiction: South Africa
• Judge: NM Mavundla J
• Judgment Date: 11 January 2019
• Docket Number: 84301/2017
• Court: Gauteng Division, Pretoria
• Hearing Date: 11 January 2019
• Citation: 2019 JDR 0350 (GP)

Mavundla J:

[1]

The appellant brought an application for an interdict restricting the respondents from using the name Autofit Fitment Centre CC, as well as using the logo Autofit

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Centre, and directing the first respondent to apply for the change of its name with the Registrar of Companies.

[2]

The first and second respondents brought a counter application which in Part A seeks condonation for the late filling of their opposing affidavit filed on 11 April 2016, and in Part B seek an order directing the Registrar of Patents and Trademarks to cancel the trademark of the applicant which is registered as Autobar Fitment Centre.

AD CONDONATION

[3]

The respondents apply for condonation, which is opposed by the applicant. It is common cause that: the application was served on the respondents on 14 December 2017; the notice of intention to oppose was filed on 11 January 2018; there is no indication when the opposing affidavit was filed. The matter was on the unopposed roll but removed due to the notice to oppose. The matter was re-enrolled on 23 February 2018 on the unopposed roll of 4 June 2018. The matter was removed to be placed on the opposed roll.

[4]

In an application for condonation the court will have regard to the following [1] :

(i)

Is it in the interest of justice that condonation should be granted [2] ; in deciding the question of interest of justice, regard must be had to the following factors;

(a)

The cause of the delay;

(b)

The explanation and reasonableness of the delay, covering the entire period of the delay;

(c)

The nature and defect causing the delay;

(d)

The effect of the delay in the administration of justice; and

(e)

The prejudice to be suffered by any of the other parties.

[5]

With regard to condonation, the greater the degree of delay is, the less the prospects of success are, regardless of the strength of the grounds upon which the appeal is premised, in casu, the action; vide Van Wyk v Unitas Hospital (Open Democratic Advice

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Centre as Amicus Curiae) [3] ; lmmelman v Loubser [4] . In the matter of Madinda v Minister of Safety and Security [5] it was held that the determination of 'good cause' entailed a consideration of all of all those factors which have a bearing on the fairness of granting condonation and affecting the proper administration of justice. Relevant factors might include (i) the prospects of success in the proposed action, (ii) the reasons for the delay, (iii) the sufficiency of the explanation offered, (iv) the bona fides of the application, and (v) any contribution by the other persons or parties to the delay and the applicant's responsibility therefor. In the matter of Grootboom v National Prosecuting Authority and Another 2014 (CC) the late Bosielo AJ held that: "[35] It is by now axiomatic that the granting or refusal of condonation is a matter of judicial discretion. It involves a value judgment by the court seized with a matter based on the facts of that particular case."

[6]

The applicant for condonation must satisfy the court by advancing an explanation showing that there was good cause for the delay. In casu the reasons advanced for the late filing of the opposing affidavit was that counsel on behalf of the respondents advised that attempts to settle the matter be embarked upon. Counsel subsequently went on a paternity leave and could only prepare the papers on his return on 19 March 2018. It was prudent to retain the same counsel because he was aquainted with the facts of the matter. Besides, "the notice of opposition was given on 11 January 2018 and the answering affidavit is thus delivered approximately 22 (twenty two) days outside the 15 (fifteen)-day period, which delay is not substantial..." [6]

[7]

The respondents do not explain what steps they took between 11 January 2018 and 9 February 2018. In an application for condonation the whole period of delay must be explained, which the respondents in casu, failed to do. When a party realises that it is out of time, it cannot afford the luxury of picking and choosing counsel, but must engage counsel who can quickly prepare papers to be filed within time or within reasonable time if he misses the last date of filing.

[8]

According to the applicant's submission, the opposing affidavit was filed 45 days out of time. The opposing affidavit with the counterclaim was deposed to on 3 April 2018. The last mentioned date exceeds the alleged twenty two days by far and in fact exposes the

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misleading statement on the part of the respondent. In my view, the respondents appreciated the fact that their delay was too long, and consequently tried to mislead the court that the delay was only twenty two days. In the matter of Grootboom v National Prosecuting Authority and Another [7] the Constitutional Court found a delay of 30 days to be unreasonable. I equally find that there was no reasonable explanation for the delay of 45 days advanced by the respondents. I find that, absent a reasonable explanation for the delay, it is not in the interest of justice that indulgence in casu should be granted.

[9]

Consequently, in the exercise of my discretion I conclude that the application for condonation by the respondents be and is refused.

AD APPLICANT'S APPLICATION FOR CONDONATION OF ITS REPLYING AFFIDAVIT AND OPPOSING AFFIDAVIT TO THE COUNTER APPLICATION OF THE RESPONDENT.

[10]

The applicant applies for condonation for the late filing of its replying affidavit and its answer to the counterapplication. The reasons advanced for any delay are that:

The applicant caused on 24 April 2018 a Rule 30 Notice to be serve after receiving the opposing affidavit and the counter application. The respondents failed to respond to the Rule 30 notice. The applicant on consideration, decided not to pursue the rule 30 notice but to file its replying affidavit and answer to the counterclaim.

[11]

The Rule 30 notice called upon the respondents to remove the irregularities raised by the applicant within 10 days from date of the notice, the ten day period expired on the 22 May. The applicant then had 10 days to take any further step, which is the filing of the replying affidavit. That ten day period expired on the 5 June. However the replying affidavit and the answer to the counterapplication was filed on 7 June 2018, which was two days out of time. In my view, the delay of two days was not significant. Regard being had to the cause of the delay and the insignificant delay, I am of the view that it is in the interest of justice that condonation be granted to the applicant.

[12]

In view of the fact that the condonation for the answering affidavit of the respondents was not granted, it stands to reason that such answering affidavit is as good as not before the court. The sequelae thereof is that the replying affidavit of the applicant is...