Phineas Lekolwane and Another v Minister of Justice and Constitutional Development

The applicants, Mr Phineas Lekolwane and Mrs Elizabeth Lekolwane, were participants in a witness protection programme. Their application for leave to appeal was struck from the roll on 22 August 2006 after their applications for both condonation and postponement of the matter were refused. The underlying dispute concerned the interpretation of a regulation that determines payment of an allowance to people in a witness protection programme, with the applicants contending for an interpretation that would result in them being paid more money while in the programme. Both a single judge and a full Court had rejected the applicants' contentions. The matter had been postponed once before, the first applicant had been warned that postponement would be the final one, and the Court held that good cause had not been shown for a further postponement. The applicants sought an order reinstating the application for leave to appeal on the court roll. The reinstatement application was lodged on 4 June 2008, nearly two years after the matter was struck from the roll. The applicants claimed they needed to instruct a new team of legal representatives and required a new application for legal aid, which was granted on 25 February 2008.

• Whether it is in the interests of justice to reinstate an application for leave to appeal that was previously struck from the roll
• What constitutes 'good cause' for reinstating a matter that has been struck from the roll
• Whether the applicants provided a full and satisfactory explanation for their earlier conduct and subsequent delay

The application was refused with no order as to costs.

An application for leave to appeal that has been struck from the roll may be reinstated only if the applicants show that it is in the interests of justice to do so. To meet this test, a party seeking reinstatement must show good cause and give a full explanation as to why their application should be enrolled in view of its history. A full and satisfactory explanation must address both the reasons for the earlier conduct that led to the matter being struck off and any subsequent delays in seeking reinstatement. Failure to provide such explanation, or the provision of an incomplete explanation that leaves significant delays unexplained, will result in the refusal of a reinstatement application.

The Court observed that its earlier decision to strike the matter from the roll did not mean 'that the doors are completely shut to a litigant,' indicating that there remains a possibility for reinstatement in appropriate circumstances where proper explanations are provided. The Court's comment suggests a balance between finality in litigation and access to justice, though in this case the scales tilted firmly towards finality given the applicants' failure to meet the required standard for reinstatement.

This case demonstrates the Constitutional Court's strict approach to procedural compliance and the importance of providing full and satisfactory explanations when seeking to reinstate matters that have been struck from the roll. It illustrates that while the doors are not completely shut to litigants whose matters have been struck off, the threshold for reinstatement is high and requires both good cause and a comprehensive explanation for previous conduct and delays. The case reinforces that the Constitutional Court will not tolerate unexplained delays or incomplete explanations, even where applicants are in vulnerable positions (such as being in witness protection programmes). It serves as an important precedent on the 'interests of justice' test for reinstatement applications and the Court's case management powers.