Phineas Lekolwane and Another v The Minister of Justice and Constitutional Development

On 15 August 1998, the first and second applicants and their three children were placed under protective custody in terms of the National Witness Protection Programme (NWPP) after the first applicant allegedly insulted a Chief, leading to community tensions and the destruction of their home, business and belongings. The first applicant received a daily allowance under Regulation 22(1) of the Witness Protection Act 112 of 1998, but his wife (second applicant) and children did not. On 21 November 2002, the applicants filed an application in the Pretoria High Court seeking that the respondent pay the second applicant and the children a daily allowance and arrears from 15 August 1998. The application was dismissed by the High Court on 27 May 2003 and the appeal was dismissed by the full bench on 8 November 2004. The applicants then lodged an application for leave to appeal to the Constitutional Court on approximately 29 April 2005, challenging the constitutionality of Regulation 22(1). The application did not comply with Rule 19(3) of the Constitutional Court rules. The matter was enrolled for hearing on 9 March 2006 despite non-compliance, and pro bono counsel was appointed. The first applicant appeared in person on the hearing day, stating he had not been consulted by his legal representatives and was unhappy with their argument. The matter was postponed to 22 August 2006 as a final postponement. The applicants subsequently changed legal teams twice more and applied for legal aid. On 21 August 2006, they filed an application for condonation and postponement, which was heard on 22 August 2006.

• Whether good cause existed for granting condonation for late filing of heads of argument
• Whether it was in the interests of justice to grant a further postponement of the matter
• Whether the applicants' explanation for the postponement was full and satisfactory
• The test and factors to be considered when an applicant seeks a postponement of a hearing
• Whether the matter should be struck off the roll when the applicants' counsel was unable to proceed after refusal of postponement

The application for condonation and postponement was dismissed. The application for leave to appeal the decision of the full bench of the High Court Pretoria made on 8 November 2004 was struck off the roll. No order was made as to costs.

A postponement of a matter set down for hearing is not a right but an indulgence from the court that will only be granted if it is in the interests of justice to do so. An applicant for postponement must ordinarily show good cause. In exercising its discretion whether to grant a postponement, the court takes into account factors including (but not limited to): (1) whether the application has been timeously made; (2) whether the explanation given by the applicant is full and satisfactory; (3) whether there is prejudice to any of the parties; (4) whether the application is opposed; (5) the broader public interest; and (6) the prospects of success on the merits of the matter. All these factors, to the extent appropriate, will be weighed to determine whether it is in the interests of justice to grant the application. If a postponement is refused and the applicant or counsel is unable to argue the matter, it follows that the matter cannot proceed and has to be struck off the roll. A party who wishes to approach the Court afresh will be required to show good cause and give a full explanation as to why their application should be enrolled in view of its history.

The Court made several obiter observations. First, that it is most unusual for the Constitutional Court to grant a postponement, emphasizing the exceptional nature of such relief. Second, the Court noted that striking a matter off the roll does not mean that the doors are completely shut to a litigant - a party may approach the Court afresh if they can show good cause and provide a full explanation in view of the matter's history. Third, the Court observed that the lackadaisical approach adopted by the applicants and their legal representatives, including failure to treat the matter as urgent despite knowledge that it had already been finally postponed, was a factor militating against granting the postponement. Fourth, the Court noted that granting yet another postponement in the circumstances would have constituted a gross abuse of the processes of the Court. The Court also expressed its indebtedness to the pro bono legal team that had originally been appointed but was later discharged at the applicant's request.

This case is significant in South African procedural law as it establishes and clarifies the Constitutional Court's approach to postponement applications. It emphasizes that postponement is not a right but an indulgence that must be justified. The case demonstrates the Court's intolerance for abuse of process and lack of diligence by litigants and their legal representatives, particularly after a final postponement has already been granted. It serves as an important reminder that litigants must treat matters with appropriate urgency and respect the Court's processes. The judgment also clarifies that when a postponement is refused and counsel is unable to proceed, the matter will be struck off the roll, though this does not permanently close the door to the litigant who can approach the Court afresh with good cause and a full explanation. The case reinforces the principle that the interests of justice must be paramount in considering postponement applications.