WINDHOEK – An appellant whom the court described as “dishonest” did not succeed in having his appeal heard in the Windhoek High Court.
Judge Naomi Shivute who wrote the judgment in agreement with Judge Elton Hoff said that it was evident from the court record that Fillemon Fillemon was not honest when he claimed that he had difficulties to obtain documents from various branches of State and that he did not know where to file his appeal.
She said that the reasons he gave for the late filing – eight months – of his appeal have been contradicted by the court record which states that he was informed by the magistrate that he should lodge his appeal within 14 days with the clerk of the court, and that Fillemon replied that he understood. She said that he never even enquired from the magistrate as to in which court he should lodge his appeal.
According to Judge Shivute for an application for condonation to succeed it must pass two hurdles. First an applicant must give reasonable explanation, which is satisfactory and bona fide, and secondly he should also indicate that he has reasonable prospects of success. In this instance Fillemon failed to comply with either aspects. She said that Rules of the Court are there and are binding on both lawyers and lay litigants and should therefore be respected by either.
She further said that Fillemon only dealt with one aspect and that is the explanation why he could not lodge his appeal on time, which was found “not to be reasonable, satisfactory and bona fide in the circumstances”.
According to Judge Shivute, she and Judge Hoff perused the court record and found that on the prospects of success his chances are very slim to non-existent. As such, according to the judges, the court could not exercise its discretion in granting condonation for the late filing of the appeal and struck the matter from the roll.
By Roland Routh