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[2010] ZAGPJHC 176
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SP&C Catering Investments (Pty) Ltd v Da Cruz and Others (2010/09079) [2010] ZAGPJHC 176 (22 September 2010)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
REPUBLIC
OF SOUTH AFRICA
Case
No.2010/09079
Date:22/09/2010
In
the matter between:
SP&C
CATERING INVESTMENTS (PTY)
LTD
…...........................................
Plaintiff
and
MANUEL
JORGE MAIA DA
CRUZ
........................................................
First
Defendant
CASCAIS
RESTAURANTS
CC
.......................................................
Second
Defendant
VENEZA
COFFEE SHOP
CC
..............................................................
Third
Defendant
SERAB
TRADERS
CC
.......................................................................
Fourth
Defendant
COZ
WORLD DEALERS 3
CC
.............................................................
Fifth
Defendant
ADEGA
DO MONGE RIVONIA
CC
......................................................
Sixth
Defendant
JUDGMENT
MEYER, J
[1] The
first to sixth applicants seek the postponement of this trial in the
action between the respondent as plaintiff and them
as the first to
sixth defendants. I refer to the parties as they are referred to in
the action. The Honourable Deputy Judge President,
Mr. Justice
Mojapelo, permitted this action as a preferential allocation to be
enrolled for trial on Monday 20 September 2010.
[2] In
its declaration, the plaintiff claims the ejectment of the second and
third defendants from shops B3 and B2 in SP Pavilion
Shopping Centre
allegedly pursuant to the cancellation of written agreements of lease
by reason of the second and third defendants’
breaches thereof.
The plaintiff also claims for the first to sixth defendants to
render statements relating to their debtors allegedly
pursuant to
deeds of cession and pledge which the first defendant and the second
to sixth defendants, represented by the first
defendant, executed
unto and in favour of the plaintiff. The defendants dispute the
plaintiff’s claims for ejectment and
for the rendering of
statements in their plea. The plaintiff’s averments in its
declaration are essentially all denied and
defences
inter
alia
of the
conclusion of partnership agreements between the first defendant and
the plaintiff’s sole shareholder and managing
director, Mr.
Pereira, are alleged, misrepresentations made by the attorney of the
plaintiff and of Mr. Pereira, but for which
it is alleged the first
defendant would not have appended his signature to the lease
agreements and to the deeds of cession and
pledge, are alleged, and
the rectification of all the written recordals of agreements between
the plaintiff and the defendants
are sought in the alternative.
[3] The
present proceedings commenced by way of an urgent application that
was launched by the plaintiff on 9 March 2010, served
on the
defendants on 10 March 2010, and set down in the urgent motion court
for hearing on 16 March 2010. Mayat, J made an order
in terms
whereof the matter was postponed
sine
die
for
hearing in the ordinary opposed motion court and the question of
costs were reserved. This order clearly facilitated the exchange
of
answering and replying affidavits in the normal course and in terms
of the Uniform Rules of Court. The defendants were thereafter
late
in the filing of their answering affidavits. The matter was enrolled
for hearing on 13 April 2010, when it was postponed
at the defendants
instance, and they were required to file their answering affidavits
by 16 April 2010, which they did. The applicant’s
replying
affidavit was filed four days later and the matter was set down for
hearing in the opposed motion court for the week commencing
on 27
April 2010. The matter was allocated to Blieden, J, who postponed
the matter
sine
die
so that
a special allocation of two days for the hearing thereof be
requested. A special allocation was made and the opposed application
was heard on 24 May 2010. Mathopo, J referred the application to
trial and further ordered that the founding affidavit stood as
a
simple summons and the answering affidavit as a notice of intention
to defend, that the plaintiff was to file its declaration
within ten
days, whereafter the rules of court would apply, and the costs were
reserved.
[4] The
allocation of the present special preferential trial date for this
matter was the result of representations made to the
Deputy Judge
President by the plaintiff’s attorneys in letters dated 9 June
2010 and 28 July 2010. In the representations
dated 9 June 2010, the
Deputy Judge President was
inter
alia
informed
that
‘[b]oth
parties will be in a position to file their discovery affidavits by 6
August 2010 and thereafter to convene and attend
a pre-trial
conference by 18 August 2010, whereafter the matter will be ripe for
hearing.’
[5] The Deputy Judge President
was not notified that the anticipated dates were not met and that
none of the parties filed their
discovery affidavits by 6 August 2010
or thereafter or that a pre-trial conference was not held by 18
August 2010 or thereafter,
and that the matter accordingly did not
become ripe for hearing. The Deputy Judge President should, in my
view, promptly have
been notified thereof. The Deputy Judge
President, on Friday 3 September 2010, notified the plaintiff’s
attorneys of the
special allocation of a preferential date for the
trial of this action for four days from Monday, 20 September 2010.
The ineluctable
inference is that the Deputy Judge President
allocated a preferential trial date for the commencement of this
trial within a mere
eleven court days from the date of such
notification based on the representations made to him that the matter
was anticipated to
be ripe for hearing by 18 August 2010, and the
failure of the parties to have notified him otherwise.
[6] The defendants’
attorneys by letter dated 9 September 2010, correctly in my view,
advised the plaintiff’s attorneys
that the matter
was
‘...clearly
not ripe for hearing.’
The plaintiff
only discovered on 8 September 2010, and the defendants a day or so
later. The defendants are not satisfied with
the plaintiff’s
discovery and believe there are other relevant documents not
discovered. The defendants wish to take the
necessary steps to
procure what they consider further and better discovery. The
plaintiff was able to adequately prepare for trial
and is ready to
proceed. Its case is not complicated. The defences raised by the
defendants are more complex. The documents
in this matter are
voluminous. The defendants’ legal representatives consult with
the first defendant through an interpreter,
which is more time
consuming. The considered and acknowledged view of senior and junior
counsel for the defendant is that they
are not adequately prepared to
conduct the trial. There is merit in the criticism raised about the
briefing of counsel for the
defendants who ‘
only
became available to deal with the matter meaningfully on 15 September
2010’
,
but I am nevertheless in all the circumstances unable to find that
the defendants had sufficient time to brief counsel, to attempt
to
obtain further discovery, and to prepare their defences adequately in
the mere eleven court days afforded to them. My conclusion,
I hasten
to add, would have been different had discovery taken place and a
pre-trial conference been held on the anticipated dates
in terms the
representations made to the Deputy Judge President.
[7] I am in all the
circumstances satisfied that the defendants’ non-preparedness
has been fully explained, that their unreadiness
to proceed is not
due to delaying tactics, and that justice demands that they should
have further time tor the purpose of presenting
their case. See:
Madnitsky v
Rosenberg
1949
(2) 392 (A), at p 399.
[8] The plaintiff’s
attorney requested the defendants’ attorney repeatedly to
launch the application for the postponement
since the defendant’s
attorney had written to him on 9 September 2010 and contended that
the matter was not ripe for hearing.
Adv. van Blerk SC, who appears
with Adv. Sawma, submitted on behalf of the plaintiff that the
application for a postponement was
not brought timeously, but at a
time that was calculated to prejudice the plaintiff. It is true that
the plaintiff was in no uncertain
terms notified in terms of the
defendants’ pre-trial list, which was served on the plaintiff’s
attorneys on 15 September
2010, that
‘[t]he
defendants shall seek the postponement of the trial in order to
prepare properly’
,
but yet the application was only given to the plaintiff’s legal
representatives on Monday morning, 20 November 2010. It
is, however,
stated in the replying affidavit that an attempt was made to prepare
for trial after the defendants’ counsel
became available to
deal with the matter meaningfully. Counsel consulted on 17 November
in order to prepare for trial. It was
during that consultation that
it finally became clear that it would be impossible to continue.
Adv. Theron then proceeded to draft
the postponement application.
Adv Theron confirmed this when he argued the postponement application
on behalf of the defendants.
I am accordingly of the view that
justice nevertheless justifies a postponement in the particular
circumstances of this case and
that no adverse costs order is
warranted.
[9] It will in my view be
appropriate to order each party to pay its or his own costs of this
application. Each party was aware
of the representations that were
made to the Deputy Judge President, of the anticipated dates by which
the exchange of discovery
affidavits and the holding of the pre-trial
conference were to take place, and that such did not eventuate. The
duty, in my view,
rested on all the parties concerned to ensure that
the Deputy Judge President was notified accordingly.
[10] In the result the
following order is made:
1. The
trial is postponed
sine
die
.
2. Each
party is to pay its or his own costs of this application.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
22
September 2010