case, although the explanation for the conduct is inadequate, I am inclined to grant condonation. These are confirmation proceedings that require the presence of the Minister, who is responsible for the administration of the impugned Act. None of the parties suggested that they had suffered any prejudice as a result of the delay. In these circumstances it is in the interests of justice to grant condonation. This, however, should not detract from the importance of litigants ensuring compliance with the directions of the Chief Justice and/or the Rules of this Court. Non-compliance must not only be discouraged as it creates great inconvenience for the courts and other litigants; it may also result in prejudice to the latter, placing the administration of justice in jeopardy.
The issue
[22]The matter before us has a narrow ambit. It concerns the confirmation of the order of invalidity of sections 14(1)(b) and 14(3)(b) of the Act, which set different ages of consent to what are termed acts of indecency for people of the opposite sex and people of the same sex. These provisions have already been repealed by Parliament and new legislation has already been promulgated. Thus, while the applicant is fully entitled to seek protection against unconstitutional legislation that
at paras 20, 22, and 30–4; S v Mercer [2003] ZACC 22; 2004 (2) SA 598 (CC); 2004 (2) BCLR 109 (CC) at para 4; Head of Department, Department of Education, Limpopo Province v Settlers Agricultural High School and Others [2003] ZACC 15; 2003 (11) BCLR 1212 (CC) at paras 11–3; and Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837 (CC); 2000 (5) BCLR 465 (CC) at para 3, this Court held that the broad test for granting condonation of late applications is whether it is in the interests of justice. In National Police Service Union and Others v Minister of Safety and Security and Others [2000] ZACC 15; 2000 (4) SA 1110 (CC) at paras 4–5 and 7–8, and in Lekolwane and Another v Minister of Justice and Constitutional Development [2006] ZACC 19; 2007 (3) BCLR 280 (CC) at paras 17–20, this test was applied to postponement applications. In Shilubana and Others v Nwamitwa [2008] ZACC 9; 2008 (9) BCLR 914 (CC) at paras 8–9, the same test was applied to late filing of papers other than applications. It is clear that there is a general rule to the effect that non-compliance with time limits will only be condoned if it is proven to be in the interests of justice.
