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[2019] ZAECPEHC 45
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Killik v Van Vuuren (715/2015) [2019] ZAECPEHC 45 (2 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 715/2015
Date heard: 29 May 2019
Date
delivered: 2 July 2019
NOT
REPORTABLE
In
the matter between:
JOHN
PETER MOLYNEUX
KILLIK
Plaintiff
AND
EUGENE VAN
VUUREN
Defendant
JUDGMENT
Goosen
J:
[1]
The plaintiff is suing the defendant for damages arising from an
alleged assault. The assault
is alleged to have occurred on 11
December 2015. It is alleged that the plaintiff was pushed and that
he fell backwards onto a
hard surface causing an injury to his right
shoulder.
[2]
The conduct of this litigation has been bedevilled by delays and,
consequently, several
postponements. Relations between the parties
are not conducive to communication. Regrettably this has not always
been confined
to the parties but has at times infected the legal
representatives.
[3]
The matter first came to court by way of an application for default
judgment. This was in
April 2016. It was, no doubt, because the
matter came to be defended, postponed
sine die
to enable the
matter to proceed on the trial roll. It was enrolled for 24 November
2017. On that occasion both parties were represented.
For reasons not
apparent from the case file the matter was again postponed
sine
die
and the defendant was ordered to pay the wasted costs. On
that occasion Revelas J made an order that the matter be enrolled on
an expedited date to be arranged with the Registrar.
[4]
The matter was then enrolled, presumably by agreement as foreshadowed
by Revelas J, for
trial on 12 March 2018. On this occasion it appears
that certain pre-trial proceedings, as required by Rule 37, had not
been completed.
Eksteen J accordingly postponed the matter
sine
die
and again directed, no doubt to enable the plaintiff to bring
the matter to finality, that the Registrar grant a preferential trial
date. Eksteen J further directed that a pre-trial conference be held
before him in chambers and that both parties attend in person.
[5]
The matter was on the trial roll on 10 May 2018 before Schoeman J. On
that occasion there
was no appearance for the defendant. Schoeman J
made the following order:
“
1.
That the matter is postponed to the 1
st
August 2018.
2.
That the Defendant is to pay all costs occasioned by the postponement
of the matter such
costs to include the costs of the medical experts,
if any, counsel’s fees and the attorney’s fees on an
attorney and
client basis, such costs to be taxable and payable
immediately.
3.
That in the event that the taxed costs aforesaid are not paid before
Wednesday, the 1
st
of August 2018 the Defendant’s
defence shall be struck out and the Plaintiff shall be entitled to
proceed on an unopposed
basis.”
[6]
It is this order which formed the centrepiece of proceedings before
this court on 29 May
2019. Before we get there it is necessary to
complete the saga.
[7]
On 1 August 2018 the matter was on the trial roll. Yet another
postponement was sought.
Huisamen AJ postponed the matter
sine die
and reserved the costs for determination by the trial court.
[8]
When the matter came before me on 29 May 2019 the plaintiff, relying
upon the order of Schoeman
J, sought to proceed on an unopposed
basis. The defendant who again sought a postponement contended that
funds were available in
trust to pay the taxed costs and that the
matter ought not to proceed on an unopposed basis. It was further
argued that the sheriff
by writ of attachment had attached a motor
vehicle as security for payment of the taxed costs. There was
accordingly sufficient
security to ensure payment of the taxed costs.
[9]
It is common cause between the parties, that the bill of costs
setting out the costs covered
by paragraph 2 of Schoeman J’s
order had not been taxed by 1 August 2018, and had for that reason
not been paid. Said bill
of costs was only taxed and the allocatur
issued on 29 November 2018.
[10]
Mr
Dyke
SC, for the plaintiff, argued that Schoeman J’s
order was clear in its effect namely that it envisaged that upon
non-payment
of the taxed costs the defendant’s defence is
ipso
facto
struck out. Since such costs had still not been paid the
defence was struck out and the plaintiff was entitled to proceed on
an
unopposed basis. Ms
Veldsman
, for the defendant, took the
stance that the costs have now/or can now be paid and that the
defence is not struck out.
[11]
A court
order is to be interpreted in the same manner as a statute or
contract or other written instrument. In
Firestone
South Africa (Pty) Ltd v Genticuro AG
[1]
Trollip JA set out the approach as follows:
“
First, some
general observations about the relevant rules of interpreting a
court's judgment or order. The basic principles applicable
to
construing documents also apply to the construction of a court's
judgment or order: the court's intention is to be ascertained
primarily from the language of the judgment or order as construed
according to the usual, well-known rules. See Garlick v Smartt
and
Another,
1928 AD 82
at p. 87; West Rand Estates Ltd. v New Zealand
Insurance Co. Ltd.,
1926 AD 173
at p. 188. Thus, as in the case of a
document, the judgment or order and the court's reasons for giving it
must be read as a whole
in order to ascertain its intention. If, on
such a reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic
fact or evidence is admissible to
contradict, vary, qualify, or supplement it. Indeed, it was common
cause that in such a case
not even the court that gave the judgment
or order can be asked to state what is subjective intention was in
giving it (cf. Postmasburg
Motors (Edms.) Bpk. v Peens en Andere,
1970 (2) SA 35
(NC) at p. 39F - H). Of course, different
considerations apply when, not the construction, but the correction
of a judgment or
order is sought by way of an appeal against it or
otherwise - see infra. But if any uncertainty in meaning does emerge,
the extrinsic
circumstances surrounding or leading up to the court's
granting the judgment or order may be investigated and regarded in
order
to clarify it; for example, if the meaning of a judgment or
order granted on an appeal is uncertain, the judgment or order of the
court a quo and its reasons therefor, can be used to elucidate it.
If, despite that, the uncertainty still persists, other relevant
extrinsic facts or evidence are admissible to resolve it. See
Garlick's case, supra, 1928 AD at p. 87, read with Delmas Milling
Co.
Ltd. v Du Plessis,
1955 (3) SA 447
(AD) at pp. 454F - 455A; Thomson v
Belco (Pvt.) Ltd. and Another, 1960 (3) SA 809 (D).”
[2]
[12]
The order of Schoeman J is, in my view, clear and unambiguous. The
learned judge granted a postponement of
the matter to a specified
date. In doing so she ordered the defendant to pay certain costs
which, she directed, should be taxable
and payable immediately. Then,
in an effort to bring what by then was a sorry saga to finality, the
learned judge provided that
the defence shall be struck out
in the
event that the taxed costs are not paid
by the specified date.
[13]
It is clear that Schoeman J intended that the defendant’s
defence would, upon the occurrence of the
event, be automatically
struck out. Such automatic striking out of a defence or claim in the
event that previous costs are unpaid
is a drastic order which has the
effect of shutting the doors of the court to a litigant.
[14]
In
Ikamva
Architects CC v MEC for Department of Public Works and Others
[3]
,
in which a defence had been struck out upon failure to respond to a
Rule 35(3) notice within 10 days of service of the court order
compelling such response, Plasket J (as he then was) expressed some
doubt as to the competence of such an order in the light of
the
provisions in the Rules by which discovery may be compelled
[4]
.
Different considerations apply in this instance.
[15]
Orders to
stay proceedings or to otherwise regulate the conduct of proceedings
in circumstances where previous costs orders remain
unpaid are not
unusual. They are made in the exercise of the court’s inherent
jurisdiction to regulate its own procedures
and to prevent an abuse
of the court’s process.
[5]
[16]
It is clear that Schoeman J, mindful of the sorry history of the
litigation, issued the order so that the
plaintiff would not be held
to ransom by further dilatory conduct on the part of the defendant
and so that the matter might be
brought to finality.
[17]
The question is whether there is scope to go beyond the clear terms
of the order and thereby give effect
to its purpose. Mr
Dyke
contended that this was competent. The fact that the costs were not
payable by 1 August 2018 by reason of the fact that the bill
had not
been taxed was, he submitted, of no moment. Once it was taxed it
became payable and since the costs remain unpaid effect
must now be
given to Schoeman J’s order.
[18]
I am unable to agree with the submission. It can surely not be
ignored that, as at 1 August 2018, Schoeman
J’s order could not
be carried into effect. As of that date the defendant’s defence
was not struck out. When was it
struck out? Is it to be assumed that
the defence was struck out 14 days after the date of the allocatur?
Or perhaps when the bill
was presented for payment? Or is it to be
assumed that the defence was only struck out if the costs were unpaid
by the date of
the next trial date? These questions highlight the
difficulty in approaching the issue on the basis contended for by the
plaintiff.
[19]
In my view, since the order could not in law be carried into effect
on 1 August 2018 it thereupon ceased
to be an effective order. This
is, of course, not to suggest that the plaintiff would not have been
able, after the costs became
due and payable and remained unpaid, to
have sought an order which would have given effect to the intention
of Schoeman J’s
order. This the plaintiff could have done by
applying for the striking out of the defence.
[20]
When the matter was argued I indicated that I would require time to
consider the matter. It was therefore
inevitable that the trial could
not proceed. Since this was also what was sought by the defendant the
only question would relate
to costs. The plaintiff, as already
indicated, was ready to proceed but sought a determination that it be
on an unopposed basis.
[21]
In the circumstances of this matter the proper order is to postpone
the trial
sine die
. It is also appropriate to order that the
taxed costs, as per the allocatur of the Taxing Mistress, be paid
within a specific period
and further to give effect to the intention
underlying Schoeman J’s order. In respect of the further costs
incurred on 1
August 2018 these were reserved for determination at
trial, as per the order of Huisamen J and no order need be made in
relation
thereto.
[22]
In respect of the costs of 29 May 2019 it would be appropriate to
direct that each party pay their own costs.
The plaintiff wished to
have this court determine that the defendant’s defence had been
struck out. In this the plaintiff
did not succeed. The defendant was,
however, not ready to proceed in any event.
[23]
In the result I make the following order:
1. The
trial is postponed
sine die
.
2. The
parties shall pay their own costs occasioned by the postponement.
3. In
the event that the defendant fails to pay the taxed costs encompassed
by paragraph 2 of Schoeman J’s
order of 10 May 2018 within 5
days of the date of this order, the defendant’s defence shall
be struck out and the plaintiff
shall be entitled to proceed on an
unopposed basis.
________________________
G.G
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the plaintiff: Adv
B.C. Dyke SC
Instructed
by: Leon
Keyter Attorneys, 27 Uitenhage Road, North End, Port Elizabeth
Tel:
046 622 9401
Obo
the defendant: Adv
M. Veldsman
Instructed
by: D,
Gouws Attorneys, 136 Cape Road, Mill Park, Port Elizabeth
Ref:
Van Schalkwyk
Tel:
041 373 0037
[1]
1977 (4) SA 298
(A) at 304D-H
[2]
See also KPMG Chartered Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) at par 39.
[3]
(CA337/2013) [2014] ZAECGHC 70 (22 August 2014)
[4]
At par 30
[5]
See
Hurter
v Hough en ‘n ander
1989 (3) SA 545
(C) at 554D;
Western
Cape Housing Development Board and Another v Parker and Another
2005 (1) SA 462
(C) at par [3] ff. But see
Clipsal
Australia (Pty) Ltd and Others v Gap Distributors and Others
2010 (2) SA 289
(SCA) where the court left open the question as to
the ambit of the discretion to stay proceedings based on grounds of
equity.