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[2019] ZAECPEHC 44
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B Davey v E Davey (191/2019) [2019] ZAECPEHC 44 (2 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 191/2018
Date heard: 27 May 2019
Date
delivered: 2 July 2019
REPORTABLE/NOT
REPORTABLE
In
the matter between:
BRAD
DAVID DAVEY
Applicant/Defendant
AND
ELIZABETH CATHARINA
DAVEY (born De Swardt)
Respondent/Plaintiff
JUDGMENT
Goosen
J:
[1]
Two applications served before the court. The first concerned an
application to compel the
defendant to furnish a reply to a request
for trial particulars. The second concerned the postponement of the
trial.
[2]
In respect of the application to compel the defendant conceded the
relief and tendered costs.
Mr
Buchanan
SC, who appeared for
the respondent/plaintiff, therefore moved only for an order for costs
in that application.
[3]
In relation to the postponement application the only issue to be
determined concerns the
costs of the application. The parties agreed
that the trial be postponed
sine die
. The applicant, who is
the defendant in the divorce action, contends that the costs of the
application should be reserved for determination
by the trial court.
The respondent, on the other hand, contended that the applicant pays
the costs occasioned by the postponement.
[4]
The principal basis upon which the applicant moved for a postponement
of the trial concerns
his current work/professional commitments. The
applicant resides in Perth, Australia. He is employed as a Legal and
Risk Officer
for CIMIC, an engineering, construction, mining and
services company. According to the applicant his employment is
demanding and
requires extensive travel internationally.
[5]
In consequence of these professional demands, and given the limited
time available to him,
so he alleges, he has been unable to
meaningfully consult with his attorney and counsel, or to provide
instructions timeously to
permit preparation for trial. These
exigencies have resulted in the applicant being unable to respond
fully and timeously
to a request for trial particulars or to make
further discovery as requested in terms of Rule 35(3).
[6]
While the applicant explains the reasons for admitted delays he
nevertheless asserts that
he has attempted to co-operate fully with
requests for documents and information relating to his business
entities and assets.
To this end he instructed his auditor to make
available all documents as may be required by the respondent. Despite
this, he states
the respondent has indicated that she is prejudiced
in her trial preparation because of the applicant’s failure to
properly
discover and disclose his assets and liabilities.
[7]
In relation to immediate pre-trial preparation the applicant points
out that neither party
has yet filed expert notices or reports in
terms of Rule 36(9). He takes the view that since the trial will
concern questions as
to the quantum of the accrual in the parties’
respective estates and maintenance, it will be necessary to present
expert
evidence. It is his intention to qualify three experts.
[8]
The respondent disputes the fact that the applicant’s work and
professional commitments
are such as to render it difficult to
prepare for trial. She points out that the applicant is entitled, in
terms of his contract
of employment, to periods of leave which he
could have used to facilitate preparation and attendance at the
trial. She further
challenges the extent of his work and travel
commitments, pointing out that he has on several occasions travelled
for personal
or vacation reasons.
[9]
The respondent denies that the applicant has made every attempt to
co-operate in regard
to access to information and documents. In
support hereof she alleges that her forensic auditor, Honeyball, has
not been able to
determine the extent and value of the applicant’s
estate. She points also to the need to launch an application to
compel
the production of further particulars.
[10]
As indicated above the parties reached agreement as to the
postponement of the trial. This no doubt reflects
the fact, as
evidenced by the papers, that leaving aside responsibility, neither
party was able to proceed. Ms
Morgan
, for the applicant,
argued that the costs should at best, be reserved for determination
by the trial court. However, in the light
of the opposition to the
postponement application, it was submitted that the respondent should
be ordered to pay the costs.
[11]
This latter argument was premised on the assertion that the
respondent had acted unreasonably in not
agreeing to the postponement
and insisting upon a substantive application. This had the effect of
unnecessarily increased costs.
[12]
Mr
Buchanan
SC, for the respondent, submitted that there was
nothing unreasonable in the approach adopted. A party is entitled to
require the
party seeking a postponement to set out in a substantive
application, the reasons therefore. In the event the basis relied
upon
was in any event open to doubt. Furthermore, the applicant did
not, as is usual in such matters, tender the wasted costs occasioned
by the postponement.
[13]
The general
rule is that the party whose conduct gives rise to a postponement of
a matter must pay the costs occasioned thereby.
In
Sublime
Technologies (Pty) Ltd v Jonker and Another
[1]
it was held that:
“
[3] With regard to
costs occasioned by a postponement, the general rule is that the
party which is responsible for a case not proceeding
on the day set
down for hearing must ordinarily pay the wasted costs. It is
important to bear in mind, however, that a litigant
is not
necessarily 'responsible' for the case not proceeding merely because
he or she applies for a postponement. In certain circumstances,
a
litigant may be forced to apply for a postponement as a result of the
conduct of an opponent, eg through inadequate discovery,
a late
amendment or any number of other reasons. The 'normal rule'
only applies to 'the party who was at fault or in default'.”
[14]
It is also
usually the case that the party seeking the indulgence of a
postponement will be ordered to pay the costs even if the
circumstances necessitating it are beyond his/her control.
[2]
The essential basis upon which the applicant seeks a postponement is,
as set out above, founded upon his inability to prepare for
trial. It
is that “
inability
”
which has given rise to delays in effecting discovery and in the
responses to requests for trial particulars. It is common
cause that
notice of the enrolment for trial was given on 11 December 2018.
Notwithstanding the alleged difficulties in making
himself available
to instruct his attorney and counsel and attend at the trial, the
request for a postponement was only raised
at a pre-trial conference
held on 15 April 2019.
[15]
Whilst there has, in the intervening period between the pre-trial
conference and the trial date, been an
exchange of further requests
for trial particulars and the like the true state of affairs is that
the applicant is not prepared
for trial. Indeed the essence of the
applicant’s application is to be found in the statement made by
his attorney in the
founding affidavit that:
“
It has eventuated
(sic) that the Defendant is not available to come to South Africa on
or prior to the date of trial, being 27 May
2019.”
[16]
These, in
my view, are not the sort of circumstances which would require that
the costs ought not to be paid by the applicant. The
applicant in his
founding papers
[3]
takes the
view that the trial court will be better placed to decide the
question of costs and that they should therefore be reserved.
I fail
to see why that is so. The circumstances giving rise to the need for
a postponement are fully addressed in the papers. I
did not
understand it to be suggested that what may arise in consequence of
the postponement may in due course provide a basis
upon which the
costs ought to be awarded.
[17]
The request to reserve the costs was based on the assertion that the
circumstances of this case are unusual
in that the applicant has made
a contribution towards the respondent’s costs and it is unclear
what costs would be wasted
on account of the postponement.
[18]
The argument as to the determination of wasted costs is without
merit. It is for the Taxing Master to determine
what costs, if any,
are indeed wasted. The fact that these costs, and their extent, is
not known at this stage is not a reason
to reserve the determination
of liability for such costs. Nor can it be a reason to reserve such
determination since the trial
court will also not know what, if any,
costs are wasted. That will only be determined on taxation when the
parties can make representations
to the Taxing Master.
[19]
The fact that the applicant has made a contribution towards the
respondent’s costs is also not a reason
to reserve the
determination of liability for costs. At best, it may be relevant to
determining whether the party who has made
a contribution should be
ordered to pay costs. As I understood the argument, as it developed,
this was the basis upon which the
contribution was raised.
[20]
It was submitted that an order directing the applicant to pay the
wasted costs occasioned by the postponement
would result in
“
duplication
” in the light of the contribution
already made. The argument proceeded along the lines that since the
contribution was premised
upon certain preparatory work being done
which has not been done there will be funds available to cover the
costs of the postponement.
[21]
I fail to see the logic in the argument. A contribution towards costs
is premised upon an established need
for such contribution and a
reasonable estimate of what would be required to bring the matter to
trial. It does not relate to a
party’s liability for costs. In
any event, what is to be decided is liability for wasted costs for
which no provision was
made in the contribution.
[22]
The applicant shifted his stance from that set out in the founding
affidavit. Whereas he had initially sought
the reservation of the
costs this was altered to a request for the respondent to pay the
costs of the application. The basis for
this was said to be the
respondent’s unreasonable refusal to agree to a postponement. I
have already touched upon this aspect.
[23]
It is not inherently unreasonable to insist that a party who seeks a
postponement should bring an application
to that effect. In my view
the fact that the respondent subsequently agreed to the postponement
while confining the dispute to
one of costs does not,
ipso facto
,
justify a costs order against the respondent.
[24]
For the reasons I have set out above there is no circumstance present
which warrants an order other than
that which is usually made.
Considerations of fairness, taking into account the circumstances in
which the postponement was sought,
require that the applicant pay the
costs occasioned by the postponement.
[25]
In the result I make the following orders:
In
respect of the application to compel
1. The
costs of the application shall be paid by the applicant/defendant.
In
respect of the application for postponement
2. The
trial set down for 27 May 2019 is postponed
sine die
.
3. The
applicant/defendant is ordered to pay the costs of the application
and the wasted costs occasioned by the
postponement for the trial.
______________________
G.G
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the Applicant/Defendant:
Adv M. Morgan
Instructed
by:
BDLS Attorneys, 2
nd
Avenue, Newton Park,
Port Elizabeth
Ref: A Gomes
Tel: (041) 373 9693
Email:
Angelique@bdlsattorneys.co.za
Obo
the Respondent/Plaintiff:
Adv R.G Buchanan SC
Instructed
by:
Schoeman Oosthuizen Inc. 167 Cape Road,
Mill Park, Port Elizabeth
Ref:
JS Oosthuizen
Tel:
(041) 373 6878
Email:
oosthass@iafrica.com
[1]
2010 (2) SA 522
(SCA) at par [3]
[2]
See
Westbrook
v Genref Ltd
1997
(4) SA 218
(DCLD) at 221I-222H
[3]
The founding affidavit was deposed to by the applicant’s
attorney and no confirmatory affidavit was filed save in reply.
Although Mr Buchanan rightly pointed to the fact that such practice
has been deprecated, it is not necessary to deal with the
issue.