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[2017] ZAWCHC 148
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O v O (11045/2013) [2017] ZAWCHC 148 (3 November 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
11045/2013
REPORTABLE
In
the matter between:
N
O
Plaintiff
and
D
O
Defendant
Court
:
Acting Justice JH Loots
Heard
:
2 August 2017
Order
:
2 August 2017
Reasons
Delivered
: 3 November 2017
ORDER
Having
read the papers filed of record, and having heard argument on behalf
of both the plaintiff and the defendant, I make the
following
order
[1]
:
(1) The matters are
postponed for hearing in the Fourth Division on 7 November 2017 at
10h00 or as soon thereafter as the matters
may be heard.
(2) This order is subject
to the provision of the requisite certificate from the Registrar's
office, which I am advised will be
provided by tomorrow, 3 August
2017.
(3) The defendant is to
pay the plaintiff's costs in respect of the application for
postponement as well as the wasted costs caused
by the postponement
of the matter, which costs will include the costs of two counsel.
REASONS
FOR THE ORDER
[1]
On 2 August 2017 I granted the above order postponing
the trial in the divorce action between the plaintiff and the
defendant (together
with the consolidated matters referred to
footnote 1 hereto) to 7 November 2017 and ordered that the defendant
is to pay the plaintiff’s
costs in the respect of the
postponement, as well as the wasted costs caused by the postponement
of the matter, including the costs
occasioned by the employment of
two counsel. I now give reasons for that order.
POSTPONEMENT
Legal
Principles
[2]
In
Persadh v General Motors SA
(Pty) Ltd
2006 (1) SA 455
(SE)
,
at paragraph [13], Plaskett J succinctly set out the applicable legal
principles when a party applies for a postponement, as follows:
“
The
following principles apply when a party seeks a postponement. First,
as that party seeks an indulgence he or she must show good
cause for
the interference with his or her opponent's procedural right to
proceed and with the general interest of justice in having
the matter
finalised
3
;
secondly, the court is entrusted with a discretion as to whether to
grant or refuse the indulgence
4
;
thirdly, a court should be slow to refuse a postponement where the
reasons for the applicant's inability to proceed has been fully
explained, where it is not a delaying tactic and where justice
demands that a party should have further time for presenting his
or
her case
5
;
fourthly, the prejudice that the parties may or may not suffer must
be considered; and, fifthly, the usual rule is that the party
who is
responsible for the postponement must pay the wasted costs
6
.
3
Centirugo AG v Firestone (SA) Ltd
1969
(3) SA 318
(T) at 320E.
4
Isaacs and Others v University of the Western
Cape
1974 (2) SA 409
(C) at 411H.
5
Western Bank Ltd v Lester and McLean and
Others
1976 (3) SA 457
(SE) at 460A.
6
Burger v Kotze and Another
1970
(4) SA 302
(W) at 305D - G.”
Application
to the Facts
[3]
When the above principles are applied to the application
brought by the plaintiff it was clear that the plaintiff had complied
with
the elements applicable to the successful application for a
postponement, and that the defendant was responsible for the
necessity
of postponing the trial.
[4]
On 28 July 2017 the plaintiff launched an application
for the postponement of the trial in the divorce action (which, due
thereto
that they had been consolidated with the divorce action,
included the two related actions under case numbers 21628/2014 and
21629/2014).
[5]
The application followed the defendant’s refusal
to agree to a postponement of the trial despite repeated requests by
the
plaintiff’s attorney of record.
[6]
The application for postponement was, principally, based
on the defendant’s late production of approximately 4 000,
mostly
undiscovered, documents delivered to the offices of the
plaintiff’s attorney on 18 July 2017 (approximately 1 500
pages),
on 21 July 2017 (a further approximately 1 500 pages),
and on 26 July 2017 (a further approximately 1 000 pages forming
part of the defendant’s trial bundle).
[7]
According to the founding
affidavit, the plaintiff’s attorney of record, immediately upon
receipt of the first tranche of
documents (merely labelled
“Defendant’s Documents”), set about collating and
checking them against the defendant’s
various discovery
affidavits. This led to her ascertaining that the defendant had not
discovered many of the documents provided.
[2]
[8]
Following the process described above the plaintiff’s
attorney, on 21 July 2017, drafted a letter to the defendant in which
she pointed out the difficulties arising from the manner in which the
defendant was providing the documents. To this letter she
attached
schedules showing her attempts to summarise the documents the
defendant had belatedly produced. The defendant was asked
to advise
the plaintiff’s attorney of record how he obtained these
documents, and if they were obtained by way of subpoena,
to provide
copies of the subpoenas to her.
[9]
Only on 24 July 2017, in response to a letter the
plaintiff’s attorney of record had sent to the defendant,
requesting an
explanation, the defendant replied by stating that he
had obtained the documents by way of subpoena; with the documents
delivered
to the plaintiff’s attorneys’ offices
representing a “full disclosure of what [he] received from the
various
institutions and persons” subpoenaed. He, however, did
not provide copies of the subpoenas.
[10]
In the meantime, during the afternoon of 21 July 2017,
the defendant had caused the second tranche of the documents referred
to
above to be delivered to the offices of the plaintiff’s
attorneys of record. These documents, the plaintiff’s attorney
states in the founding affidavit, were also not collated and again
consisted of mainly undiscovered documents. The defendant’s
response, in the answering affidavit, to these allegations in the
founding affidavit was that:
“
The documents I
delivered comprised documentation sent to me by way of Subpoena and
as Ms Koen and her staff were advised, the documents
I intend to use
at the trial were only the documents that would appear in the trial
bundles.
”
[11]
On 26 July 2017 the defendant delivered the
aforementioned trial bundle comprising 3 lever arch files containing
in excess of 1
000 pages. This prompted the plaintiff’s
attorney of record to enquire as to the provenance of many of the
documents
included therein, specifically asking whether the documents
included in the trial bundle were new documents or whether they had
been extracted from the defendant’s discovery documents and/or
the documents delivered to the offices of the plaintiff’s
attorneys of record on 18 and 21 July 2017. The response to this
enquiry was that the defendant’s trial bundle included no
new
documents and that the plaintiff could ignore those documents the
defendant had received by way of subpoena not included the
trial
bundle as they were irrelevant to the defendant
[12]
Of the seven subpoenas sued out by the defendant between
April and May 2017 the plaintiff, by virtue thereof that the
witnesses
involved had contacted the plaintiff’s attorneys of
record upon receipt of these subpoenas, had notice of only two.
The further subpoenas were only “provided” upon receipt
of the defendant’s answering affidavit in the application
for
postponement on 1 August 2017, or during the course of argument
on 2 August 2017.
[13]
As appears from the context above, the defendant opposed
the plaintiff’s application for postponement. In support of his
opposition
the defendant filed a 63 page affidavit, excluding the
annexures thereto. Despite this, and the many accusations the
defendant
levelled against the plaintiff in the body of the answering
affidavit, the opposition to the application for postponement
essentially
came down to the defendant alleging:
a.
that
the plaintiff and her partner, Mr Kast, were overseas at the time of
the delivery of the subpoenaed documents, with the result
that she
would not have considered them prior to her return to South Africa on
26 July 2017;
b.
that
the documents were the plaintiff’s documents and that she
could, accordingly, have discovered them;
c.
that
the documents delivered to the plaintiff’s attorney of record
within a short period of the defendant having received
them; and
d.
that
the plaintiff, in any event, had sufficient time to prepare
(principally because of the history of the litigation, and because
thereof that most of the documents with which the defendant had
provided the plaintiff were irrelevant)
[14]
The first ground of opposition referred to above can be
dismissed out of hand. The plaintiff and her partner being abroad
when the
subpoenaed documents were delivered to the plaintiff’s
attorneys did not entitle the defendant to decide to not notify the
plaintiff’s attorneys of their receipt and to not provide them
to the plaintiff forthwith. Furthermore, as was evident from
the
papers filed of record, the plaintiff’s legal representatives,
immediately upon receipt of the documents from the defendant,
attempted to collate and digest them; only requesting that the trial
be postponed once this proved to be an impossible task.
[15]
So too can the second ground referred to above be
rejected. A party is under an obligation to discover those documents
that may
be relevant to the matter. Should the other party not be
satisfied with the discovery made by the party making discovery,
Uniform
Rules 35 (3), 35 (6), and 35 (7) provide a powerful tool in
the arsenal of the party so dissatisfied with the discovery. In
ever escalating steps the non-compliant party can be forced to make
proper discovery and even see his or her claim dismissed or
defence
struck out. It is therefore not an answer to say that, because the
other party had the documents in their possession or
under their
control they must be aware thereof that the documents in question are
irrelevant to the issues in dispute. This is
especially so where the
party dissatisfied with discovery has not availed himself of the
provisions of Uniform Rule 35 (3), since
the party who had not
discovered the documents is thereby led to believe that the documents
in question are, also insofar as the
other party is concerned, not
relevant to the proceedings. In the instant matter the
defendant, therefore, at his own risk
chose to sue out subpoenas
duces tecum
in
circumstances where (on his own version) discovery ought to have been
employed should he have wished to both obtain the documents
and to
alert the defendant thereof that such documents may be relevant to
the issues in dispute between them.
[16]
The third defence raised in response to the application,
at the same time, does not provide an answer to the application for
postponement
and raises an issue relating to the manner in which many
subpoenas
duces tecum
are
executed.
[17]
Section 35
of the
Superior Courts Act, 10 of 2013
authorises the issue of subpoenas, granting the party requiring the
attendance of a witness to give evidence, or to produce a document
the power, as of right, to do so by suing out from the office of the
registrar one or more subpoenas in the form as provided for
the
Uniform Rules.
[18]
Uniform Rule 38 (1) provides that:
“
(a) Any party,
desiring the attendance of any person to give evidence at a trial,
may as of right, without any prior proceedings
whatsoever, sue out
from the office of the registrar one or more subpoenas for that
purpose, each of which subpoenas shall contain
the names of not more
than four persons, and service thereof upon any person therein named
shall be effected by the sheriff in
the manner prescribed by rule 4,
and the process for subpoenaing such witnesses shall be, as nearly as
may be, in accordance with
Form 16 in the First Schedule.
If any witness has in his
possession or control any deed, instrument, writing or thing which
the party requiring his attendance
desires to be produced in
evidence, the subpoena shall specify such documents or thing and
require him to produce it to the court
at the trial.
(b) Any witness who has
been required to produce any deed, document, writing or tape
recording at the trial
shall hand it over to
the registrar as soon as possible
, unless the
witness claims that the deed, document, writing or tape recording is
privileged. Thereafter the parties may inspect
such deed, document,
writing or tape recording and make copies or transcriptions thereof,
after which the witness is entitled to
its return.” [Emphasis
added]
[19]
Documents, tape recordings, computer records and other
material (hereinafter collectively referred to as “the
documents”)
required in terms of a subpoena
duces
tecum
are, therefore, to be deposited with
the registrar as soon as the witness is able to do so. The
reasons for this are evident.
Firstly, many trials would be
postponed because the subpoenaed documents are only produced on the
first day of trial and, secondly,
depositing the documents with the
registrar provides a controlled environment where an independent
officer of the court holds the
documents in order to enable all
parties to the litigation, on equal footing, to inspect the documents
and make copies or transcriptions
of such portions of the documents
as they may consider relevant.
[20]
The procedure prescribed by Uniform Rule 38 (1) also
serves the purpose of obviating the need for the attendance at the
trial of
a witness who has been subpoenaed merely to produce
documents (unless, of course, he or she has to identify the said
documents).
[21]
A practice, for which the Uniform Rules make no
provision, has however developed. In terms of this practice a witness
who has been
subpoenaed,
duces tecum
,
deposits the documents (or copies thereof) with the attorney of
record for the party with whom that witness is aligned, or who
had
sued out the subpoena. The attorney then collates these documents,
whereafter the documents, or portions thereof, are forwarded
to the
other party or parties to the litigation. This is done either by way
of discovery, or merely by forwarding the documents
to the other
party or parties under cover of a letter informing such party or
parties thereof that the documents have been obtained
from the
witness or witnesses by way of subpoena.
[22]
The instant matter, where the documents were merely
forwarded to the plaintiff’s attorney, marked “Defendant’s
Documents”, is a clear example of why the practice described in
the immediately preceding paragraph is to be discouraged.
Here,
coincidentally, the defendant himself (through the offices of his own
law firm) also acts as his attorney of record, therefore
wearing the
hat of client, as well as that of attorney.
[23]
Following the issue of subpoenas
duces
tecum
on various (mainly institutional)
witnesses, already during March, April, and May 2017, the witnesses
in question did not deposit
the documents with the registrar, as
required by Uniform Rule 38 (1) (b), but deposited them with the
defendant’s law firm.
The defendant, despite being placed in
possession of the documents did not advise the plaintiff’s
attorneys of the receipt
of the documents, choosing rather to provide
the defendant’s attorneys with copies of the approximately
3 000 documents
in haphazard tranches, during the week before
the commencement of the trial. The defendant then, alleged
that:
“
The documents I
seek to rely on at court are in the trial bundles. The balance of the
documents received by me by way of subpoena
were, in my view, without
obligation, nevertheless and for the purposes of promoting
transparency, delivered by me to Ms Koen’s
office the rationale
for my doing so was to promote transparency and avoid yet another
claim for a postponement
”
.
[24]
He then sought to argue that, because he had perused the
documents and had only included a small portion of the subpoenaed
documents
in the trial bundle, the plaintiff ought not to have any
difficulty preparing for trial.
[25]
The aforesaid allegations and argument simultaneously
demonstrate:
a.
the
danger of not following the provisions of Uniform Rule 38 (1) (b) due
to one party then being able to act as arbiter of what
he or she
believes is relevant, before providing the documents to the other
party or parties to the litigation;
b.
the
danger presented by attorneys not appreciating that in circumstances
where, despite the provisions of Uniform Rule 38 (1) (b)
not having
been complied with by virtue of the documents being delivered to them
and not the registrar, there is a duty on them
to make all the
documents so delivered to them available to the other parties to the
litigation; and
c.
the
fact that the defendant failed to appreciate that it is not for him
to dictate to the plaintiff which documents she and her
legal
representatives are to have regard to out of the plethora of
documents the defendant had provided to the plaintiff’s
attorney of record.
[26]
The foregoing, inevitably, leads thereto that the fourth
ground relied upon by the defendant in opposition to the plaintiff’s
application must also fail. I add that, had the defendant
pursued his remedies under Uniform Rule 35, the entire issue relating
to the trial documentation would have been resolved well in advance
of the allocated trial date.
[27]
In the premises; the reasons for the plaintiff’s
inability to proceed were fully explained; the postponement sought
was not
a delaying tactic; justice demands that the plaintiff be
afforded the opportunity to properly prepare for trial; and,
therefore,
she had shown good cause for the interference with the
defendant’s procedural right to proceed with the hearing of the
matter.
[28]
In weighing the prejudice the plaintiff would have
suffered had I refused the application for the postponement and
forced her to
proceed with the trial against the monetary prejudice
the defendant alleged he would have suffered should the trial have
been be
postponed, the balance favoured the plaintiff. In my
view the defendant can hardly complain about the postponement where
his actions were the cause of the plaintiff being unprepared.
[29]
Finally, and in response
to a request on behalf of the defendant that I only postpone the
divorce action, and allow the associated
matters to proceed to trial,
it remains my view (besides the fact that the consolidation of the
actions dealt with the defendant’s
technical contentions in
this regard
[3]
) that a piecemeal
determination of actions, which had for apparently good reason been
consolidated, would not be in the interest
of justice.
COSTS
[30]
As was stated in the quotation from
Persadh
,
above, the party responsible for the postponement must pay the wasted
costs occasioned thereby.
[31]
This principle was restated by the Supreme Court of
Appeal in
Sublime Technologies (Pty) Ltd v
Jonker
2010 (2) SA 522
(SCA)
where, at paragraph [3], Griesel AJA stated:
“
With
regard to costs occasioned by a postponement, the general rule is
that the party which is responsible for a case not proceeding
on the
day set down for hearing must ordinarily pay the wasted costs.
2
It is important to
bear in mind, however, that a litigant is not necessarily
'responsible' for the case not proceeding merely because
he or she
applies for a postponement. In certain circumstances, a litigant may
be forced to apply for a postponement as a result
of the conduct of
an opponent, eg through inadequate discovery, a late amendment or any
number of other reasons. The 'normal rule'
only applies to 'the party
who was at fault or in default'.
3
2.
Cilliers Law of Costs (Service Issue 17), para 8.11; Erasmus Superior
Court Practice B1-306D - E (Service 28, 33).
3
Burger v Kotze and Another
1970
(4) SA 302
(W) at 304F/G.
[32]
In paragraph [4] of the judgment in
Sublime
Technologies
Griesel AJA continues to
state that:
“
When
a trial court is likely to be in a better position than the court
hearing the application for postponement, to ascertain the
facts and
to decide who should be liable for the costs of a postponement, it is
a salutary rule that costs should be reserved for
later
determination.
4
4
Compare Erasmus loc cit.
”
[33]
I was unconvinced that the trial court will be in a
better position to consider who should be liable for the costs of the
postponement.
The application for postponement consisted of a
full set of papers, which clearly set out the facts and the bases of
both the application
and the opposition thereto. This was followed by
nearly a day’s argument during which the application was fully
ventilated.
I see no reason why, in such circumstances, the trial
court should be burdened with the rehearing of the application (which
a decision
on the question of costs in respect of the postponement
would necessitate) merely to determine the question of costs in
respect
thereof.
[34]
As is evident from the reasons provided above in respect
of the postponement, I am of the view that the defendant was
responsible
for the plaintiff requiring the postponement of the
trial. Furthermore, the plaintiff’s attorney of record
requested
the defendant to agree to the postponement of the matter
the moment she realised that they would left with too little time to
properly
prepare for trial. The defendant, however, simply refused to
entertain this request which occasioned the necessity of a formal
application for the postponement of the trial.
[35]
Not only did the defendant require a formal postponement
application, he also chose to file a lengthy affidavit (with
annexures
comprising approximately 200 pages) in opposition thereto,
which was served and filed on the day the trial was set to commence
(Tuesday, 1 August 2017), despite the plaintiff having received the
application on 28 July 2017, the previous Friday. As a result
thereof
that the plaintiff did not have the opportunity to reply to the
defendant’s answering papers before the first day
of trial, the
matter had to stand down to the next day.
[36]
I therefore see no reason why I should not have ordered
the defendant to pay the costs of the postponement and the wasted
costs
occasioned thereby, and no argument advanced enjoined me to do
otherwise.
[37]
Finally, where the matter
warrants the employment of two counsel
[4]
,
and shortly before the trial it appears that a postponement is
necessary, I see no reason why the costs of the postponement, and
the
wasted costs occasioned thereby, should not include the costs of two
counsel, especially since a postponement is not guaranteed
for the
party seeking it and almost inevitably leads to a division of focus
between the counsel employed in order to provide for
the possibility
of the trial continuing.
CONCLUSION
[38]
In the above-mentioned premises the order of 2 August
2017, as recorded above, was made.
______________
JH
LOOTS
[1]
The order included the following
pre-amble “In the matters of N O, that is case number
11045/2013, in the matter of D O
v Apple Tree Guest House, and that
is matter 21628/2014 and then also in the matter of D O v N O and
the Stellenbosch Municipality,
that is matter 21629/2014. I
just wish to make a correction with regard to the first case.
In that matter also Mr
D O is the defendant. I propose to
refer to the parties in all three of these matters as in case number
11045/2013, so
for the avoidance of doubt I shall refer to N O as
the plaintiff and Mr D O as the defendant.”
[2]
In the answering
affidavit, where he specifically dealt with these allegations, the
defendant did not dispute the effort the plaintiff’s
attorney
had expended, or that the documents had not been discovered, only
alleging that the documents delivered were in the
same format as
delivered to him, and that the plaintiff’s attorney ought to
have known the difference between discovered
documents and documents
received under subpoena.
[3]
The defendant’s
counsel had contended that the plaintiff had (as per the notice of
motion) only officially sought the postponement
of the divorce
action, with the result that the other matters could proceed.
[4]
See: AC Cilliers,
The
Law of Costs
, LexisNexis,
Chapter 13.23, Electronic Edition, updated to September 2017.