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

The applicants and their three children were placed under protective custody in terms of the National Witness Protection Programme on 15 August 1998 after the first applicant allegedly insulted a Chief, resulting in community tensions that led to the destruction of their home, business and belongings. Under Regulation 22(1) of the Witness Protection Act 112 of 1998, only the first applicant received a daily allowance (R10 per day), while his wife (second applicant) and children received nothing. The applicants sought an order that the respondent pay the second applicant and children a daily allowance and arrears from 15 August 1998. The Pretoria High Court dismissed their application on 27 May 2003, and the full bench dismissed their appeal on 8 November 2004. The applicants then sought leave to appeal to the Constitutional Court and to declare regulation 22(1) unconstitutional. The matter was initially set down for hearing on 9 March 2006. The day before, the first applicant complained he had not been consulted by his pro bono legal representatives. The Court postponed the matter to 22 August 2006 as a final postponement. The applicants subsequently changed legal teams twice and belatedly applied for legal aid. On 21 August 2006, they applied for condonation for non-compliance and a further postponement, claiming insufficient time to prepare.

• Whether condonation should be granted for the applicants' failure to file additional heads of argument by the deadline
• Whether a postponement should be granted for the hearing set down for 22 August 2006
• What constitutes good cause for granting a postponement
• Whether it is in the interests of justice to grant a further postponement after a final postponement has already been granted
• The appropriate exercise of the court's discretion in respect of postponement applications

(a) The application for condonation and postponement of the hearing was dismissed. (b) 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. (c) No order was made as to costs.

The postponement of a matter set down for hearing cannot be claimed as a right but is an indulgence from the court. A postponement will not be granted unless the court is satisfied that it is in the interests of justice to do so, which ordinarily requires the applicant to show good cause. In exercising its discretion regarding postponement applications, the court takes into account: (1) whether the application has been timeously made; (2) whether the explanation given is full and satisfactory; (3) whether there is prejudice to any parties; (4) whether the application is opposed; (5) the broader public interest; and (6) the prospects of success on the merits. Where a court has already granted a final postponement and made this clear to the parties, and the applicant subsequently fails to prepare adequately despite having ample time to do so, and only applies for a further postponement at the last moment without good cause, it is not in the interests of justice to grant the application. To do so would constitute a gross abuse of the court's processes. When a postponement is refused and counsel is unable to argue the matter, the appropriate order is to strike the matter off the roll.

The Court noted that striking a matter off the roll does not mean the doors are completely shut to a litigant. 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 also observed that representation of parties is generally limited by the rules of Court (Rule 6), which provides that only persons entitled to appear in the High Courts may appear on behalf of parties in proceedings before the Constitutional Court unless the Court or Chief Justice directs otherwise. The Court expressed its indebtedness to the pro bono legal team that initially appeared for the applicants before being permitted to withdraw from the matter.

This case establishes important principles regarding the Constitutional Court's approach to postponement applications and the consequences of failing to comply with court directions. It demonstrates the Court's commitment to maintaining the integrity of its processes and its unwillingness to tolerate abuse of those processes, even in matters involving constitutional rights. The judgment clarifies that postponements are indulgences, not rights, and that parties who have been granted a final postponement cannot expect further indulgences without exceptional justification. The case also illustrates the Court's balancing of access to justice concerns against the need for finality and efficient case management. It serves as a warning to litigants and their legal representatives about the importance of treating court directions seriously and preparing matters timeously, particularly after a final postponement has been granted. The case also shows the Court's willingness to accommodate unrepresented litigants (allowing the first applicant to address the Court personally) while maintaining proper standards of preparation and compliance with court rules.