Failure to file a Notice of Opposition to a Rule 43 application within the stipulated ten working days period. Submission of an Application for Condonation – notice of motion and an affidavit with reasons why opposing papers were filed late.
In terms of the court rules, one has ten working days to file a Notice of Opposition after a Rule 43 application has been served. Sometimes it happens that the attorney for some or other reason does not serve and file opposing papers on time. This could be due to receiving no financial instructions on time.
In this type of scenario, the attorney cannot simply draft opposing papers. An application for condonation must be launched in terms of the court rules for late filing of the opposing affidavit. This would involve a notice of motion being drafted, which is accompanied by an affidavit, which sets out the reasons why the opposing papers were not timeously filed.
The affidavit would, in this situation, usually be drafted and signed by the attorney, who basically takes the blame for the opposing affidavit not being filed on time.
The affidavit would possibly start off with averments by the attorney that the Rule 43 application was served on their offices and was misplaced maybe because there was a new receptionist who did not know what to do with it, and it was then misplaced and lost. The attorney no doubt has to be honest with the averments made, as one cannot lie whilst under oath, as an affidavit signed under oath basically has the same strength as those statements being made in a court.
The affidavit would then possibly have further averments along the lines of the Rule 43 application only being noticed at a later stage due to the misplacement of the papers by the new staff member. It could possibly also then have further averments along the lines of the opposing affidavit having been drafted and forwarded to the client, who undertook to peruse and sign it within a certain time but did not. This is indeed sometimes the case.
In terms of Rule 55(1)(g)(i) of the court rules, ten days is given to the Respondent to file a reply with the Registrar as to whether the application for condonation is going to be opposed or not. Very often the application would not be contested by the other side, as a court usually bends over backwards to accommodate a party who has or may have a defence, and who wishes to defend.
The usual way of going about things would be for the one attorney simply to call the other explaining what has happened and informally requesting whether the other attorney would agree to the late filing of the papers. Ethically one attorney would allow the other attorney’s request and agree to the late filing, without the necessity of an application for condonation being launched.
At the end of the day court rules are there for a reason, or else there would be no court rules. The courts, however, will not easily grant orders if there is a valid reason as to why papers haven’t been filed timeously. Filing papers timeously is very important. This prevents an application for condonation from having to be launched and unnecessary legal costs from being incurred.
article written by Cape Town divorce attorney, Peter M Baker
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