Adlem v Arlow

The appellants filed two applications for condonation. The first was due to their attorneys delivering the notice of appeal one day late. This delay occurred because the appellants' attorneys had requested the respondent's attorneys to furnish the address of their Bloemfontein correspondents for service, and the respondent's attorneys ultimately agreed that the notice should be sent to them by telefax. The second application was necessitated by the appellants' attorneys miscalculating the date by which heads of argument had to be delivered, resulting in them being delivered seven days late. In both applications, the respondent opposed the condonation. The respondent alleged prejudice on the basis that the appellants were deliberately delaying the matter and causing damage to property by overgrazing cattle. In the first application, the respondent annexed 153 pages of unnecessary documentation to his answering affidavit. Both applications for condonation were granted, and the appellants succeeded in the main appeal.

• Whether condonation for late filing should be granted in both instances
• What the appropriate costs order should be where condonation applications were unreasonably opposed

In each application for condonation: (1) The appellants are ordered to pay the costs on an unopposed basis. (2) The respondent is ordered to pay the appellants' costs occasioned by his opposition.

Where condonation applications are opposed unreasonably, the court may make a split costs order: the applicant pays costs on an unopposed basis (the normal consequence of seeking condonation), but the respondent pays the costs occasioned by his unreasonable opposition. Factors relevant to determining whether opposition is reasonable include: whether acceptable explanations were provided for the delay; whether good prospects of success exist; whether real prejudice is demonstrated; and whether unnecessary voluminous documentation is filed in opposition.

The court noted that the criticism by the respondent's attorney that the notice of appeal should have been sent by telefax to the respondent's attorneys in the first place was equally applicable to her predecessors who had participated in the correspondence. The court also observed that the case was not an extreme type of case like Beweging vir Christelik-Volkseie Onderwys v Minister of Education [2012] SASCA 45 which the respondent had relied upon. The court commented that the filing of 153 pages of documentation (including heads of argument from the court below, statutes, cases and textbook extracts) was 'quite unnecessary'.

This case demonstrates the approach of South African courts to costs in condonation applications, particularly where opposition is deemed unreasonable. It illustrates that even where condonation is granted (and applicants would ordinarily pay costs), a party who unreasonably opposes a condonation application may be ordered to pay the costs occasioned by that opposition. The case reinforces the principle that parties should not oppose applications without proper justification, and that filing unnecessary voluminous documentation may be viewed as unreasonable conduct attracting adverse costs consequences.