“REPORTABLE”

CASE NO.: A 151/2008

SUMMARY

HAW RETAILERS CC T/A ARK TRADING AND ANOTHER versus

TUYENIKALAO NIKANOR T/A NATUTUNGENI PAMWE CONSTRUCTION CC

DAMASEB, JP

04/10/2010

Practice

Civil procedure: application for condonation

In sequestration proceedings- applicants obtained provisional order

of sequestration against respondent. Application not served on
respondent but on her legal practitioner in unrelated proceedings.
Rule nisi granted and at applicant’s request Court directing service
of rule nisi at “residential address” of the respondent. Deputy Sheriff
not complying with Court’s direction and instead serving rule nisi
again on the respondent’s former legal practitioner. Applicants now
seeking final order but respondent raising point in limine that rule
be discharged because of irregular service. Applicants maintaining
that respondent suffered no prejudice.

1
Held:

1. Although in an application for condonation lack of prejudice to

opponent is an important consideration -in this day and age that
cannot be only consideration: The proper management of Court roll
so as to afford as many litigants as possible the opportunity to have
their matters heard by Court an equally important consideration. It
is a notorious fact that High Court roll is overcrowded and tighter
Court control of litigation and stricter adherence to timetables and
Court directions now necessary. Judges becoming more and more
embroiled in wasteful satellite litigation relating to condonation
applications for practitioners’ failure to comply with elementary
requirements of Rules of Court and Court directions. This now
happening too often and needs arresting.

2. In casu simple option was open to the applicants to abandon

proceeding and seek substituted service. Instead they opted for a
route that is costly and more burdensome to the Court. Parties and
their legal advisors must take every measure reasonably possible
and expedient to curtail costs and length of litigation and to bring
matters to finality in a way least burdensome to the Court.

3. Therefore in exercise of Court’s discretion, condonation application

refused and rule nisi discharged.