Kemisa v Mohammed Jaffer Limited (Civil Application 3 of 1997)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The applicant's earlier application for extension of time to appeal had been dismissed for want of prosecution when neither the applicant nor counsel appeared. On this restoration application the court held that counsel had been prevented from reaching court in time because his motor vehicle broke down while travelling to the hearing, which amounted to sufficient cause under rule 55(3). Although the applicant's conduct was criticised as dilatory, this did not bar restoration because the respondent could be adequately compensated in costs. The dismissed application was accordingly restored, with costs to the respondent, on condition that the applicant re-lodge it within seven days.
Outcome
Dismissed application restored; applicant ordered to re-lodge it within seven days, with costs to the respondent.
Facts
The applicant had filed an earlier application (Civil Application No. 28 of 1996) seeking an extension of time within which to lodge an appeal out of time. When that application was called for hearing, neither the applicant nor his counsel was present, and on the respondent's application it was dismissed for want of prosecution with costs. The applicant's counsel deposed that he had set out from his chambers to travel to court, but his motor vehicle suddenly stopped; thinking it was a fuel problem he hired a taxi to fetch petrol, but the vehicle still would not start, so he abandoned it and continued by the hired taxi, arriving at court late and after the application had already been dismissed. The present application to restore the dismissed application was filed two days later.
Issues
- Whether the applicant showed sufficient cause under rule 55(3) of the Supreme Court Rules to justify restoration of an application that had been dismissed for want of prosecution following the non-appearance of the applicant and counsel.
Orders
- Application granted.
- Applicant to lodge the dismissed application within seven days from the date of the ruling.
- Costs of the application to the respondent in any event.
Rules and key headnotes
Legislation cited (5)
- Rules of the Supreme Court r.42(2)
- Rules of the Supreme Court r.55(3)
- Rules of the Supreme Court r.55(1)
- Rules of the Supreme Court r.22
- Rules of the Supreme Court r.70
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.