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[2010] ZAGPPHC 85
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Masemola v Minister of Safety and Security and Another (3852/2008) [2010] ZAGPPHC 85 (30 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 3852/2008
DATE:
30/07/2010
In
the matter between:
J
M MASEMOLA
Plaintiff
And
MINISTER
OF SAFETY AND SECURITY
1
st
Defendant
MPENDULO
JONG I KAY A ZOKO
2
nd
Defendant
JUDGMENT
LEDWABA,
J
[1]
The parties' legal representatives agreed at a pre-trial held on 19
July 2010 that the trial set down for hearing from 26 July
2010 to 13
August 2010 is not ready to proceed since both parties were not ready
to proceed with the trial and further that on
the issues in the
papers the trial would not be finalised within the period allocated
for hearing.
[2]
Advocate Maritz, who appeared for the plaintiff, submitted that the
plaintiff's non preparedness was mainly caused by the defendants'
failure to comply with Rules 35, 36 and 37 of the rules of this
court.
[3]
Advocate Maritz argued that the court should order that the
defendants' were liable to pay plaintiff's wasted costs. The
defendants'
counsel, Advocate Erasmus, argued that the appropriate
order to be made is that the costs should be costs in the action, or
that
the costs were to be reserved.
[4]
The undermentioned summarised facts are common cause between the
parties:
4.1
The
plaintiffs attorneys served the defendants' attorneys with the notice
of set down on 22 July 2009.
4.2
Plaintiff's
attorneys served the defendants' attorneys with notice to discover in
terms of rule 35(1), (6), (8) and (10) on 2 October
2008.
4.3
Plaintiff's
attorneys served defendants' attorneys with a discovering affidavit
on 17 June 2010.
4.4
On
28 May 2010 plaintiff's attorneys faxed a notice in terms of rule 37
informing the defendants' attorneys that a pre-trial conference
would
be held on 3 June 2010 at 16h00. The said notice was filed at court
on 31 May 2010.
4.5
Plaintiffs
attorneys served and filed notices in terms of rule 36(9) (a) and (b)
on 24 June 2010 and 29 June 2010, respectively.
4.6
Defendants'
attorneys did not attend the pre-trial scheduled for the 3 June 2010.
4.7
Defendants'
attorneys served plaintiffs attorneys with an unsigned discovery
affidavit on about the 1 July 2010.
4.8
On
7 July 2010 plaintiffs attorneys sent a letter to the defendants'
attorneys requesting that a pre-trial conference be held on
19 July
2010.
4.9
Defendants'
attorneys served plaintiff's attorneys with a notice in terms of ruie
36(9) (a) and (b) on 13 July 2010. The said notice
was served nine
days before the hearing instead of, at least, fifteen days before the
hearing.
4.10
On
the 14 July 2010 plaintiffs attorneys addressed a letter to the
defendants' attorneys informing them that their notice in terms
of
rule 36(9) (a) and (b) was not served timeously, that they were
prejudiced in their preparation for trial and that, if necessary,
plaintiff would apply for a postponement and ask for a cost order
against the defendants.
4.11
Defendants'
attorneys responded by faxing a letter to plaintiff's attorneys on 14
July 2010 confirming that they will attend of
the pre-trial
conference scheduled for the 19 July 2010 and further promised to
send copies of documents mentioned in the first
schedule of the
defendants' "discovery affidavit(s)".
4.12
The
defendants' attorneys in the said letter estimated the duration of
the trial to be nine to ten days.
4.13
Defendants'
attorneys wrote to plaintiffs attorneys on 14 July 2010 and stated in
their letter that the copies of the 'discovered'
documents were
available at the office to be collected. They also requested
plaintiffs attorneys to furnish them with copies of
the documents
discovered by the plaintiff.
4.14
On
15 July 2010 defendants' attorneys gave plaintiffs attorneys a bundle
of documents consisting of 1226 pages.
4.15
A
pre-trial conference was held on 19 July 2010 and the parties,
inter
alia,
agreed
that merits and quantum should not be separated.
4.16
Defendants'
attorneys served plaintiffs attorneys with a signed discovery
affidavit commissioned on 8 July 2010 but same was only
served on 20
July 2010. The plaintiff did not condone the late filing of the
defendants' discovery affidavit(s).
4.17
The 'index bundle of documents' of the defendants reflected of 1540
pages, which means it had extra 314 pages compared to the
bundle of
documents given to the plaintiff's attorneys.
[5]
Advocate Erasmus submitted that the reason why the defendants' did
not attend a pre-trial on 3 June 2010 is because their file
at the
State attorney's office was transferred from Mr. Olwage to Mr.
Minnaar and documents did not reach Mr. Minnaar timeously.
[6]
Advocate Erasmus further submitted that the plaintiff too was not
ready to proceed with the trial because he did not serve the
defendants' attorneys with an expert notice to prove his claim of R10
918 800 for loss of income.
[7]
He further submitted that both parties were not ready to proceed with
the trial and the parties have now further agreed that
the matter
should be set down for hearing for 3 months. He therefore requested
the court to order that costs should be costs in
the main action.
[8]
It is trite that the award of costs is a matter where the court has
to exercise its discretion judicially.
[9]
The general rule is that a party who caused the case not to proceed
on the trial date must ordinarily pay the wasted costs.
[10]
On careful analysis of the facts which are common cause, in my view,
what caused the plaintiff not to be prepared for the case
timeously
is the defendants' failure to attend the pre-trial conference on the
3 June 2010 and the defendants' failure to properly
discover
timeously.
[11]
The fact that after the plaintiff's attorneys received the discovered
documents they realised that the duration of trial would
be more than
what the parties estimated cannot, in my view, be a factor to absolve
the defendants' attorneys conduct of failing
to attend the pre-trial
conference and to properly file a discovery affidavit timeously.
[12]
Defendants' attorneys were warned as early as on the 14 June 2010
that the notices in terms of rule 36(9) (a) and (b) were
not filed
timeously and that the failure to discover prejudiced the plaintiff
in the preparation for the trial.
[13]
Plaintiff's alleged failure to file an expert notice in terms of rule
36(9) (a) and (b) for loss of income cannot, in my view,
be regarded
as a cause for the postponement. Plaintiff had decided to conduct and
take a risk of proceeding with a case without
using further experts.
[14]
I need to record that it is important that the parties should hold an
effective pre-trial conference before they decide on
the duration of
the trial and apply for dates of hearing.
[15]
I
therefore, make the following order:
(i)
The
matter is postponed
sine
die.
(ii)
The
defendants are jointly and severally liable to pay the plaintiff's
wasted costs, which costs should include the costs of opposition.
A.P.
LEDWABA
JUDGE
OF THE HIGH COURT