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[2010] ZAWCHC 433
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Industrial Development Corporation of South Africa and Another v Tsung and Another, Wallace and Another v Findevco (Pty) Ltd and Another (5932/2006) [2010] ZAWCHC 433 (3 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: 5932/2006
DATE:
3 AUGUST 2010
In
the matter between:
INDUSTRIAL
DEVELOPMENT CORPORATION
OF
SOUTH AFRICA LIMITED
….......................................................
First
Plaintiff
FINDEVCO
(PTY) LIMITED
…......................................................
Second
Plaintiff
and
ROBERT
HSU-NAN TSUNG
….....................................................
First
Defendant
ROBERT
CHENG-LI TSUNG
…...............................................
Second
Defendant
CASE
NUMBER
:
13100/2009
DATE
:
(WLD) CASE NO: 9353/2008
In
the matter between:
GARY
DONOVAN WALLACE N.O.
…...............................................
First
Plaintiff
SHAUN
LOUIS RAI N.O.
…..........................................................
Second
Plaintiff
and
FINDEVCO
(PTY) LIMITED
…...........................................................
First
Defendant
PRILLA
2000 (PTY) LIMITED
…...............................................
Second
Defendant
JUDGMENT
DAVIS,
J
:
The
Court is put in a difficult position, because on the one hand this
application for postponement raises a plethora of difficulties.
In
the first place it is trite to remark that postponements are not for
the taking. They have to be properly motivated. The reason
that they
have to be properly motivated is because the interests of both
parties have to be safeguarded by a court.
Plaintiffs
are also entitled to ensure an expeditious resolution of the claims
that they have brought before the Court. It goes
without saying that
defendants are also entitled to be given every opportunity to put
their case in the best possible light.
In this case, however,
further difficulties arose which can be outlined as follows. The
matter was due to start today after postponements
during 2009. There
is no disputing that the applicants' expert forensic account, Mr
Hudson-Bennett, is sadly ill and not available
to provide the
applicants with the expert evidence required. There is no dispute,
on the evidence, that the applicants sought
to obtain the services
of other experts, two of whom indicated that there was no basis by
which they could prepare a report and
be available to provide the
necessary expertise for this case by 3 August 2010.
It
has emerged through argument (based I might add on averments which
have been teased out in argument) that the only available,
say on 30
August 2010 and we wish to procure a postponement to that date",
such postponement would have been properly motivated
and understood
by the Court. But this is not what occurred. What compounds the
difficulty is the astonishing, (and I use that
word advisedly)
admission by Mr
Crowe
that
the defendants are not to be located in the country and thus not
available to attend the court, were this Court indeed to
order that
the matter proceed.
Since
defendants could have only known, at the very earliest at the
commencement of July 2010 that a postponement was being sought,
in
that their attorney had failed to procure the necessary expert, it
appears to me that it cannot be argued that they were now
caught
with so short a time span in which to make arrangements to travel to
South Africa. There is something deeply disturbing
about defendants
taking the attitude that they were going to be granted a
postponement anyway and, therefore, do not need to
attend court. I
say this, because Mr
Crowe
pressed
upon me the point that his clients were not present and that,
therefore, he would be in a disadvantageous position were
the trial
to commence.
Mr
Fitzgerald
,
who appears together with Ms Buikman on behalf of the plaintiffs in
this particular application, submitted that, apart from
all of these
difficulties, it was perfectly possible for him to commence the
trial by way of a series of witnesses, who could
be described as
"lay witnesses" and who would provide testimony of a
nature which would not necessarily require any
recourse to an
expert. In other words, Mr
Crowe
would
not be prejudiced in his cross-examination of these witnesses,
absent his expert.
At
the commencement I commented that I was placed in a difficulty. The
difficulty is that a senior member of the Bar, namely Mr
Crowe
,
has assured me that he would be placed in significant difficulties
were this case to proceed today. In the first place, his
clients are
not present, in the second place he does not have an expert and
indicates that both the presence of the defendants
and expert may be
necessary. I simply do not know whether that is the case, because I
cannot know more about the case than the
papers that had been
presented to me. That I may have some difficulty in understanding
the submission, having read the expert
reports provided to the
Court, that is the reports of Mr Hudson-Bennett, together with two
expert reports deposed to by the plaintiff,
compound my anxiety.
However,
I have to accept that the defendants have a right to a fair trial
and with grave reluctance, therefore, I have to grant
a
postponement. But that postponement is not going to be for the six
months period that Mr
Crowe
's
attorney suggested to the respondents' attorney. Mr
Crowe
,
of course, informed me in open court that this was merely a
suggestion. I am not entirely certain as to what the flexibility
of
that suggestion was in the light of the following: When I put to Mr
Crowe
that
I was prepared to hear this matter in the first week of the fourth
term, that is the week beginning 11 October and that I
propose that
the trial commence on 13 October, it was suggested to me that this
may not be convenient and that he would have
to take instructions.
Inherent
is the problem that the matter cannot be heard in that week or the
following week or the week thereafter, it may well
be that this case
will have to be heard, would be in the first term of the following
year, which would be more than six months.
That would certainly, in
my view, work to the considerable prejudice of the respondents in
this application. Insofar as this
suggestion is concerned, I will go
so far as to suggest that the matter commences on 13 October unless
counsel wish to approach
me about some date that may be more
convenient to all of them, but I would be very reluctant to extend
any postponement beyond
that date.
Turning
to the question of costs. Mr
Crowe
,
suggested in his heads of argument, and there was some further
suggestion that this postponement had to be granted and that
the
plaintiffs in this case had taken a view to oppose an application.
They had known about it, the difficulties were clear and
there had
been a lack of co-operation in order to facilitate a resolution to
the problem. Furthermore, the submission by Mr
Crowe
is
that there was no basis by which this case could ever have been
presented to the Judge President in such a piecemeal fashion
and for
the Judge President to have consented to having it been heard on 3
August in the piecemeal fashion which Mr
Crowe
had
characterised the suggestion to Mr
Fitzgerald
.
Whatever
the merits of those arguments, the overriding fact is that the
defendants placed this Court in a position that was extremely
unlikely that the Court could force the case to go ahead without
prejudice. That a skeletal explanation, at the very best, was
provided as to why a definite date could not have been proposed as
to when Professor Everingham was available and the trial might
have
been begun. For this reason, it appears to me that this is an
application for a postponement which was caused, in a large
measure,
by an inability on the part of the applicants to come up with a date
that would have been practical and which would
have then placed the
defendants in the position that they would have either had to accept
it, or arguably run the risk that their
conduct would have been
classified as unreasonable. For these reasons, therefore, the
postponement is granted, but the costs,
insofar as this application
is concerned, are to be paid for by the defendants and those will
include the cost of two counsel.
DAVIS,
J