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[2010] ZAWCHC 483
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Brait Investments Ltd v Ikwezi Industrial Corporation (Pty) Ltd and Another (7513/00) [2010] ZAWCHC 483 (28 September 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NUMBER: 7513/00
DATE
:
28 SEPTEMBER 2010
In the matter between:
BRAIT
INVESTMENTS LTD
…........................................................
PLAINTIFF
and
IKWEZI
INDUSTRIAL CORP. (PTY) LTD
…....................
FIRST
DEFENDANT
MOHAMMED
SHAFFIE MOWSER
….........................
SECOND
DEFENDANT
JUDGMENT
ZONDI.
J
:
Arguments
on the merits of this matter were presented on 16 September 2010
following a dismissal of the defendants' application
for the
postponement of its further hearing. The application for a
postponement on the 15
,h
of
September 2010 had been brought by the second defendant who at that
stage appeared in person on behalf of himself and the first
defendant.
The
basis for the application was that the defendants needed time to
engage the services of the new legal team as their erstwhile
legal
team's mandate had been terminated. The application for a
postponement was refused and the matter proceeded in the absence
of
the second defendant who had asked that his further attendance of
the court be excused. Mr Smalberger, who appeared for the
plaintiff,
handed up comprehensive heads of argument from which he argued the
matter. At the conclusion of the closing arguments
by the Plaintiff,
judgment was reserved. The parties were subsequently notified by the
registrar on the 27
,h
of
September 2010 that the judgment was to be delivered on the 28
th
of
September 2010 at 10 o'clock.
Today this morning just
shortly before ten o'clock in the morning, Mr Lamprecht, who now
appears for the defendant, filed an application
for the postponement
of the handing down of the judgment on two grounds, firstly, to
afford the defendants an opportunity to
present their closing
arguments on the merits as they lost this opportunity when their
application for the postponement was dismissed
on 15 September 2010.
In this regard it was
pointed out by him that he had not had an opportunity to study and
analyse the pleadings and evidence presented
thus far in this
matter. He indicated that the record of the proceedings relating to
this matter was only brought to him by the
second defendant on 22
September 2010.
Secondly, it was pointed
our by Mr Lamprecht that should the postponement be granted, it may
become necessary for the defendants
to apply to this Court for leave
to reopen their case, and adduce further evidence.
Mr
Ash opposed the application on behalf of the plaintiff on the basis
that it was nothing else but another attempt by the defendant
to
once more frustrate the finalization of the proceedings. It is
significant to note that the order of the 15
th
of
September 2010 refusing postponement is not under attack. There is
no appeal against it.
Postponement
is rather sought today on different grounds although its aim is to
enable the defendants to obtain the opportunity
which they were
unable to get when they sought postponement on the 15
th
of
September 2010.
By
way of background on the 1
st
of
September 2010 the defendants sought postponement on the ground that
certain counsel, whom they had briefed to replace counsel
whose
mandate they had terminated, was not immediately available to assist
them, and that in any event even if he was, he would
need more time
to go through the voluminous record. I find this assertion quite
disturbing in view of the fact that counsel whom
they said they had
previously briefed had appeared on their behalf in the ill-fated
rescission application of the summary judgment
and was familiar with
the matter.
Nevertherless
the defendants were granted time up until the 15
th
of
September 2010. Again there was another request for a postponement
on the 15 September 2010. Inability to fund litigation of
this
matter was never raised as an issue by the defendants. Rather
postponement was sought on the ground that a particular counsel
whom
they had briefed to conduct trial on their behalf, was not
immediately available. It is significant to point out that mere
withdrawal by a practitioner or the mere termination of a mandate
does not entitle a party to a postponement as of right (
Take
and Save Trading CC v Standard Bank
2004(4)
SA 1 (SCA) at 5B).
It is surprising to
learn today that the defendants have now briefed a different counsel
and not counsel whose unavailability
was in the past used as a
reason for a postponement. In my view this application is not bona
fide. It is used simply as a tactical
manoeuvre for the purpose of
obtaining an advantage to which the defendants are not legitimately
entitled. In reaching the decision
in this matter, I have taken
account of the fact that it is important that the proceedings should
reach finality and that the
matter should not be decided on
piecemeal basis.
This matter has been
postponed on a number of occasions in the past and it is important
that it should now reach finality.
In
the circumstances application for a postponement should be refused.
In the result the
APPLICATION
FOR POSTPONEMENT IS REFUSED WITH COSTS
.
I now proceed to read
the order which I prepared on the assumption that the matter was
before me on default.
Reasons will be
furnished in due course, if requested. Having heard the evidence and
having considered the arguments advanced
by the plaintiff, judgment
is granted in favour of the plaintiff against the first and second
defendants jointly and severally,
the one paying the other to be
absolved in the following terms:
1. Payment in the sum of
R1.7 million;
2.
Interest on the sum of R11 400 000 at the rate of 15.5% from the
18
lh
of
December 2000 to date of registration of transfer of erf 2762, Cape
Town, ("the Property") into the name of Spearhead
Property
Holdings Limited ("SPH");
3.
Interest
on the sum of R1.7 million at the rate of 15.5%
from the date of
registration of transfer of the property into the name of Spearhead
Holdings (Pty) Ltd to date of payment in
full;
4. Payment in the sum of
R551 947,12;
5.
Interest on the sum of R551 947,12 at the rate of 15.5%
a
tempore morae;
6. Costs of suit on the
party and party scale;
7. The qualifying
expenses of the expert witness, Mr Gibbons;
8. In regard to the
defendants' counterclaims:
The counterclaim
introduced during February 2009 is dismissed with costs, on the
party and party scale;
The costs of the
defendants' initial counterclaim, which was withdrawn by the
defendant, are awarded to the plaintiff on a party
and party scale.
Such costs to include the qualifying expenses of the expert witness,
Mr Bertrand.
ZONDI, J