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[2018] ZAECPEHC 77
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Minister of Police v Kyekyeku and Another (2328/2013) [2018] ZAECPEHC 77 (21 September 2018)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
–
PORT
ELIZABETH
Case
No.: 2328/2013
In the matter between:
MINISTER
OF POLICE
Appliquant
and
CHARLES
OPPONG KYEKYEKU
First
Respondent
RICHMAN
MATHELEZI TEMBANI
Second
Respondent
JUDGMENT
REVELAS
J
:
[1]
This
is an application for the postponement of a trial set down for 16
October 2018. The application is opposed by the first
respondent, but not by the second respondent.
[2]
The
trial in question concerns a claim for damages brought by the
respondents as plaintiffs, arising out of their alleged unlawful
arrest, detention and continued detention. Claims that were
brought for alleged malicious prosecution and assault are no
longer
pursued by them. The arrest in question was carried out in 2011
and the action was instituted almost three years later
in 2013.
[3]
The
postponement is sought by virtue of the investigating officer’s
unavailability to give evidence in respect of the alleged
unlawful,
continued arrest. The investigating officer, Warrant Officer
Hoffman, has since the beginning of the year been
deployed to South
Sudan on a peace-keeping mission. She is only likely to return
to South Africa in June next year and would
thus be out of the
country on the trial date.
[4]
The
first respondent does not dispute that Hoffman is an essential and
material witness in the case to be advanced by the applicant.
The opposition to the postponement is premised on the objections
raised by the first respondent as set out below.
[5]
The
first respondent accused the applicant of being dilatory.
[6]
Mr
West, on behalf of the first respondent argued that there has been a
substantial delay between the date on which the cause of
action arose
and the trial date. A postponement, if granted, adversely
affects the memories of witnesses and has a negative
impact on the
first respondent’s prosecution of his claim against the
applicant. Mr West stressed that the first respondent
had set
the matter down for allocation of a trial date a long time ago and
notified the applicant’s attorney thereof as early
as 21 April
2017, and that since 25 August 2017 all parties knew what the trial
date was.
[7]
The
first respondent also cast aspersions on the reason for Hoffman’s
unavailability, i.e. her alleged presence in South Sudan
on the trial
date. According to Mr West, the applicant could have secured
the attendance of Hoffman since police officers
are “ferried
back and forth from their deployment every 2 months”.
Presently there is no evidence that this might
be the case.
[8]
The
applicant clearly furnished a satisfactory explanation of the
circumstances that gave rise to the application for postponement.
The first respondent is not able to – and did not dispute -
that Hoffman is an essential witness to the applicant’s
case.
Without her the applicant would have no prospects of refuting the
respondents’ claim for continued detention.
[9]
The
applicant’s attorney only became aware of Hoffman’s
unavailability on 4 July 2018. That could not have been
foreseen by the applicant’s attorney. Once the
applicant’s attorney realised this, he acted expeditiously by
seeking a postponement by agreement. It was refused.
[10]
The
first respondent’s challenge to the reason for Hoffman’s
absence on the trial day is unconvincing. The first
respondent’s suggestion that Hoffman could be ‘ferried’
back to South Africa for the trial, and that could be
arranged, is
impractical and could turn out to be very inconvenient for many other
persons not involved in the trial. The
aforesaid assumption of
first respondent is in any event not premised on proper evidence.
[11]
It
is trite that in exercising their discretion when deciding whether or
not to grant a postponement, courts take into account considerations
of prejudice
[1]
,
convenience and inconvenience to the parties, and whether a
postponement would be in the interests of justice
[2]
.
[12]
Should
a postponement be refused in the circumstances of this case, the
applicant would clearly be unduly prejudiced, because the
applicant
would not be able to lead essential evidence and lose his case by
default. The only prejudice to be suffered by
the first
respondent is a further delay of the proceedings which would be less
substantial than his own delay in the prosecution
of his delictual
claim for damages, which was the most substantial delay in this
matter.
Costs
[13]
The
applicant gave the first respondent ample notice of the postponement
and motivated by cogent reasons. He nonetheless persisted
with
his opposition, instead of opting for the less costly route.
There is therefore no reason why a costs order should then
be made
against the applicant who made expeditious efforts not to incur such
costs. However, the normal rule that costs
should follow
the result, ought not to apply. There may be future
developments with regard to securing Hofmann’s evidence.
Bearing such considerations in mind, it would be prudent to reserve
the costs of the postponement for determination by the trial
court.
[14]
In
the circumstances the following order is made:
1.
The
trial set down for 16 October 2018 is hereby postponed
sine
die
.
2.
The
costs of the application for postponement is reserved for
determination by the trial court.
E
REVELAS
Judge
of the High Court
Appearances
:
For the Applicant: Adv M
Beneke instructed by The State Attorney, Port Elizabeth
For the First Respondent: Mr
West instructed by BDLS Attorneys, Port Elizabeth
Date heard:
20 September 2018
Date delivered: 21 September
2018
[1]
The National Bank of SA Ltd v Assigned Estate
Lentin and Tobias 1924 SWA 84.
[2]
Grootboom v National Prosecuting Authority
2014
(2) SA 68
(CC) at 75H-76C.