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2011
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[2011] ZAGPJHC 206
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Haffejee v Minister of Safety and Security and Others (47213/09) [2011] ZAGPJHC 206 (9 November 2011)
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
: 47213/09
DATE
: 2011/11/09
In the matter between
HAFFEJEE,
ISMAIL
....................................................................
PLAINTIFF
and
MINISTER OF SAFETY AND SECURITY
............................
1
ST
DEFENDANT
SENIOR SUPERINTENDENT SESHOKA
...........................
2
ND
DEFENDANT
INSPECTOR W F
OLIVIER
.....................................................
3
RD
DEFENDANT
AUTOLUX (PTY) LTD t/a SUBARU MIDRAND
..................
4
TH
DEFENDANT
J U D G M E N T
WILLIS J
:
[1] The matter was set down for trial yesterday. The fourth
defendant, Autolux (Pty) Ltd, trading as Subaru Midrand, yesterday
brought an application for a postponement of the action
sine die
.
The grounds upon which it relied were the following:
The plaintiff’s expert notice was filed late on 31 October
2011.
The plaintiff's discovery affidavit filed on 16 August 2011
discovered three items only and thereafter there was a supplementary
discovery affidavit filed on 19 October 2011, containing 83
additional items, which new documents did not correlate to items
in
the discovery affidavit.
The pre-trial conference was held a mere two weeks before the trial.
There has been no pre-trial minute. The plaintiff is alleged
to
have failed to reply properly to a request for further particulars.
The defendants are of the view that the trial will endure for more
than six days and accordingly there should be an application
before
the deputy judge president for a special allocation of the trial.
[2] The application for a postponement was supported by the first,
second and third defendants. Yesterday, during the course of
argument, Mr Omar submitted that the counterclaim had no merit
whatsoever and had been lodged purely for purposes of delay and
that
the real, triable issue certainly would be disposed of in a matter of
a few days. He also submitted that the other objections
raised on
behalf of the fourth defendant had no merit.
[3] It seemed to me yesterday that one should cut through the issues
and determine whether there was substance in the allegation
that the
counterclaim had no merit whatsoever. This morning, Dr Heidi Erna
Wolfsohn, who has a Master’s degree from the Heinrich
Heine
Institute in Dusseldorf, Germany as well as a D.Com degree in
forensics from the same institute testified. Her evidence
obviously
is purely for
prima facie
purposes, but it was to the effect
that she had conducted an audit of the books of the fourth defendant
at the relevant time and
it would seem, according to her researches,
that the plaintiff did in fact owe the fourth defendant several
million rands worth
of money.
[4] There is no reason to doubt either Dr Wolfsohn’s integrity
or the accuracy of her conclusions. Of course, it may well
be that
the plaintiff’s defence that he paid can be proven. This
aspect that, according to the plaintiff, he paid certain
sums of
money to the fourth defendant, is not reflected in Dr Wolfsohn’s
audit report. The plaintiff relies upon the fact
that, according to
him, certain bank cheques drawn by ABSA bank were deposited into the
accounts of the fourth defendant which
bank cheques reflected
payments made in effect by him, the plaintiff.
[5] During the course of Dr Wolfsohn’s evidence this morning,
it immediately became apparent, even to me as a judge who has
not had
the time to read all the documents or get on top of all the facts,
that a critically relevant factor in determining whether
the
plaintiff’s version is true or not, would be his own bank
statements. In other words, if there were requests to ABSA
to draw
bank cheques to make payments on his behalf, that presumably would
reflect in his own bank account. In other words, there
would be a
corresponding debit in his account for the bank cheque drawn to pay
someone else on the plaintiff’s instructions.
That
information is critically relevant.
[6] Mr
Morison
, who appears for the fourth defendant,
correctly submitted that this ground alone, the matter was not ripe
for trial. In other
words, there would have to be a discovery of the
plaintiff’s own bank statements in order for the matter to
proceed to trial
so that these issues may properly be ventilated.
[7] Yesterday, I was prepared to grant a postponement without making
a costs order against any party. I was amenable simply to
putting the
costs in the pot, but I warned Mr Omar that if, after hearing the
evidence in support of an application for a postponement
today, I
should have to grant a postponement, the plaintiff would be ordered
to pay the costs. Such a costs order seems appropriate
in all the
circumstances. Valuable court time has been taken up to consider
this matter.
[8] Mr
Morison
asked that the costs of two counsel be allowed.
It cannot be considered extravagant, in the circumstances, to have
employed two
counsel. Without putting too fine a point on the
matter, the defendant’s case involves defending allegations of
fraud and
dishonesty. That is why the Minister of Safety and Security
has been brought into the matter. There are reputations on the line.
When it comes to defending a reputation, a court will be reluctant to
rush to find that a litigant has been unduly cautious. Reputations
matter. They are the lifeblood of commerce in the city.
[9] Accordingly, the following is the order of the Court:
The trial action is postponed
sine die
.
The plaintiff is to pay the defendants’ costs of the
application for a postponement, which costs are to include the costs
of two counsel.
------------------------------------
Counsel for the plaintiff: Zehir Omar.
Counsel for the first, second and third defendants: Advocate E
Mailele.
Attorneys for the first, second and third defendants: The State
Attorney.
Counsel for the fourth defendant: Advocate L J
Morison
SC
(with him, E.
Mkhawane
).
Attorneys for the fourth defendant: Rina Caldeira.
------------------------------------