BGM Traffic Control Systems v The Minister for Transport and Others

This was an application for condonation of the late filing of heads of argument. The first respondent, represented by the Civil Division of the Attorney-General's Office, was served with the applicant's heads of argument on 10 September 2008. In terms of the rules of court, the respondent had to file its heads within ten days. No heads were filed on behalf of the first respondent until the morning of the set down date on 11 February 2009, representing a delay of over 5 months. The Attorney-General's representative, Mr Mutsonziwa, made an oral application for uplifting the automatic bar and testified from the bar about difficulties in the Attorney-General's Office, including acute staff shortages, erratic attendance, and difficulty controlling support staff. The main application dealt with an alleged agreement concluded in 2004, five years prior to this application.

• Whether condonation should be granted for the late filing of heads of argument by the first respondent
• Whether the difficulties experienced by the Attorney-General's Office constituted a reasonable excuse for the delay
• The appropriate procedure for placing facts before the court (affidavit versus oral testimony from the bar)
• Whether the Attorney-General's Office should be treated differently from other law firms in terms of compliance with court rules

1. The late filing of the first respondent's heads is hereby condoned. 2. The first respondent shall bear the costs of the application. 3. The Registrar of this court shall cause a copy of this judgment to be handed over to the Attorney-General.

1. The Attorney-General's Office is not entitled to special treatment in terms of compliance with court rules and competes on an equal footing with all other law firms. 2. Courts should not accommodate excuses from the Attorney-General's Office that would not be accepted from other legal practitioners, as doing so would suggest partiality to the executive. 3. Legal practitioners must place facts before the court by way of affidavit (sworn testimony), not through oral evidence from the bar, as oral testimony cannot be tested through cross-examination. 4. In considering condonation applications, the court exercises discretion taking into account: the reasonableness of the excuse for delay, the importance of the case, the parties' interest in finality, the convenience of the court, and avoidance of unnecessary delay in the administration of justice (applying United Plant Hire principles). 5. Even where non-compliance is unjustified, condonation may still be granted where important issues should be resolved on merits rather than on technical grounds.

The court made several non-binding observations: (1) It expressed concern about the reported state of affairs in the Attorney-General's Office, including staff shortages and erratic attendance, noting this "paints a grim picture" that "should be corrected with all necessary speed" if the reports are true. (2) The court stated it would make no finding as to whether it believed Mr Mutsonziwa's reports about conditions in the Attorney-General's Office. (3) The court warned that "time is nigh that the office of the Attorney-General shapes up or faces the legal consequences of its failure to discharge its constitutional duty efficiently and within the rules of the court." (4) The court directed that a copy of the judgment be provided to the Attorney-General, indicating concern that the Attorney-General should be made aware of the issues raised regarding his office's performance.

This case is significant for establishing judicial expectations regarding the conduct and performance of the Attorney-General's Office in litigation. The judgment emphasizes that government legal representatives must comply with court rules on the same basis as private practitioners and that economic difficulties do not excuse non-compliance. It reinforces procedural requirements that facts must be placed before courts through affidavits, not oral testimony from the bar. The case also demonstrates judicial concern about maintaining impartiality and avoiding perceptions of favoring the executive branch. It provides guidance on the exercise of judicial discretion in condonation applications, balancing technical non-compliance against the interests of justice and resolving matters on their merits.