Delay in refiling leave to defend application condoned where defects were procedural and no mala fides were shown

Delay in refiling an application for leave to defend is treated differently from delay in the initial filing and is not assessed with the same strictness as delay under the general limitation rule. Where the original filing delay had already been condoned, the remaining defects were only procedural and related to rectification and refiling, with no mala fides shown. A casual approach by counsel did not justify denial of relief altogether; instead, the proper course was to protect the respondent by awarding costs. The delay in refiling was therefore condoned on payment of costs, and the appeal succeeded.

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Issues: Whether the delay in refiling the application for leave to defend should be condoned.

Analysis: Delay in refiling stands on a different footing from delay in initial filing and is not to be tested with the same rigour as delay under the general limitation provision. The initial delay in filing the leave-to-defend application had already been condoned. The defects were procedural and related to rectification and re-filing, and the record did not disclose mala fides on the part of the appellant. Although there was a casual approach on the part of counsel, the circumstances did not justify denying relief altogether, and the appropriate course was to compensate the respondent by costs.

Conclusion: The delay in refiling the application for leave to defend was condoned on payment of costs, and the appeal succeeded.

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