Minister of Department of Rural Development and Land Reform and Others v Poit and Others

The respondents filed a review application on 6 December 2021 seeking to set aside a decision to pay them compensation of R36,000.00 in respect of land claims and to review settlement agreements signed by the first and second respondents. The applicants (respondents in the main proceedings) filed their notice of intention to oppose on 10 January 2022. The record of decision, due within 15 days under Rule 35 of the Land Claims Court Rules, was only dispatched two months later and indexed on 31 March 2022. The respondents filed their supplementary affidavit on 6 April 2022. The applicants' answering affidavit was due by 29 April 2022 but was filed 15 days late on 26 May 2022, prompting this condonation application. The applicants attributed the delay to their legal representatives: counsel was unavailable for three weeks after receiving the supplementary affidavit; the State Attorney dealing with the matter was ill from 6-19 May 2022; and administrative delays in processing and filing the affidavit.

• Whether condonation should be granted for the late filing of an answering affidavit in review proceedings
• What constitutes good cause for condonation
• Whether the interests of justice override an inadequate explanation for delay
• Whether costs should be awarded in condonation applications in the Land Claims Court

Condonation granted for the late filing of the answering affidavit. The applicants were granted leave to file their answering affidavit within five days from the date of the order. The applicants were ordered to pay the costs of the condonation application.

Where an explanation for delay in filing court documents is inadequate and falls short of good cause, condonation may nevertheless be granted where the interests of justice require it, particularly where refusing condonation would result in a dispute being adjudicated without the fullness of all evidence and without hearing from parties who had no personal role in causing the delay. The interests of justice may override an inadequate explanation for delay where the proper administration of justice requires that all parties be heard. However, where delay is caused solely by the failures of legal representatives, costs may be awarded against the applicants despite condonation being granted.

The court made several critical observations about the applicants' legal representatives' conduct: (1) There was no evidence that clients were afforded an opportunity to consider and apply their minds to the draft affidavit - they were merely 'pressurised to sign'; (2) The vague assertion that the State Attorney's tender process for appointing counsel is 'long and tedious' without supporting detail was insufficient, and counsel could not explain how counsel is appointed in urgent matters; (3) The attorney's decision to attend to 'urgent issues' rather than immediately file a commissioned affidavit that was already late was inexplicable; (4) The attorney's email requesting more time on 25 May 2022 while already in possession of a commissioned affidavit was problematic; (5) The explanation that another attorney could not be assigned because the original attorney was 'seized with the matter' was unconvincing given there was no evidence she participated in drafting or reviewing the affidavit, suggesting another attorney could have handled the administrative processing.

This case clarifies the application of condonation principles in the Land Claims Court context, particularly where delays are attributed to legal representatives' administrative failures. It demonstrates that while inadequate explanations for delay may not automatically preclude condonation, costs consequences will follow. The judgment emphasizes the overriding importance of the interests of justice, particularly where refusing condonation would result in a matter being decided without hearing from all parties, especially organs of state like the Minister. The case also confirms that the Land Claims Court will depart from its usual practice of not ordering costs where the circumstances justify it, particularly where delays are caused by legal representatives' failures.