Condonation flexible discretion: In 1962 the then highest court wrestled with when to condone court applications that were filed late or did not comply with the rules.   One of giants of the court, Holmes JA, formulated an approach in his own inimitable way.   It has been consistently adopted and followed.   He decided that formulating a rule of thumb would only serve to harden the arteries.   In the absence of any prospects of success there would be no point in granting condonation.   A flexible discretion is required in deciding whether sufficient cause has been shown.   The discretion must be exercised judicially after an objective overview and consideration of all the facts.   There must be fairness to both sides.   A piecemeal approach is incompatible with a true discretion.   Ordinarily facts are not individually decisive and the following interrelated facts are relevant:

  • degree of lateness,
  • explanation therefor,
  • prospects of success, and
  • importance of the case.

Melane v Santam Insurance Company Ltd  [1962] 4 All SA 442; 1962 (4) SA 531 (AD) per Holmes JA (Hoexter JA, Beyers JA, Ogilvie Thompson JA and Botha JA concurring) [Note: An in forma pauperis (a Latin term meaning “in the form of a pauper,” referring to a party to a lawsuit who gets filing fees waived by filing a statement, often in the form of an affidavit, declaring the inability to pay) appeal with Adv S Kentridge appearing for the appellant].

Excerpt with emphasis added

Holmes JA: These are our reasons for the dismissal of an application for condonation.

“The petitioner, a Bantu mineworker in the Transvaal with rural ties in the Transkei, sought leave to appeal in forma pauperis against a judgment of SNYMAN, J., delivered in the Witwatersrand Local Division on 19th February, 1962.  At the outset it was necessary to deal with his prayer for condonation, for the petition was out of time by several weeks.  He noted an appeal on 8th March, 1962.  Rule 4(7)(a) of the Rules of this Court requires a petition for leave to appeal in forma pauperis to be lodged not later than 21 days after the appeal has been noted.  The petition was lodged on 10th May, 1962.

However, Rule 13 provides that this Court may, for sufficient cause shown, excuse the parties from compliance with the Rules.

In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides.

Among the facts usually relevant are

  • the degree of lateness,
  • the explanation therefor,
  • the prospects of success, and
  • the importance of the case.

Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.

Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion.  What is needed is an objective  conspectus of all the facts.  Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.  Or the importance of the issue and strong prospects of success may tend to compensate for a long delay.  And the respondent’s [Santam] interest in finality must not be overlooked.  I would add that discursiveness should be discouraged in canvassing the prospects of success in the affidavits.  I think that all the foregoing clearly emerge from decisions of this Court, and therefore I need not add to the ever-growing burden of annotations by citing the cases.

The petition for condonation was opposed on several grounds.  It was said

  • that the petitioner had been dilatory:
  • that there was not sufficient explanation in regard to his unsuccessful attempts to raise funds; and
  • that in any event he ought to have realised at the outset that he would not be able to raise the amount required for the appeal.

There is something to be said for this criticism.  On the other hand I think it is to the petitioner’s credit that he did try, as he says he did, to raise funds in order to proceed in the usual way.  And in this country one has a human, and I trust judicial, measure of sympathy for a humble Bantu struggling to reconcile an alien concept of urgency with the un-plentiful subject of cash.

However, the point which the respondent [Santam] made must be borne in mind and weighed with all the other considerations.  Among these are the factors

  • that the subject-matter of the appeal is substantial and of importance to the petitioner, who has suffered grievous injuries;
  • that he has throughout desired to prosecute his appeal and has at no time departed from that standpoint; and
  • on the other hand that the respondent’s [Santam] interest in finality merits some consideration”.