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[2020] ZAECPEHC 28
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McWilliams v McWilliams and Others (3145/2015) [2020] ZAECPEHC 28 (3 August 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 3145/2015
Reportable/Not
Reportable
In
the matter between:
JENNIFER
ANNE McWILLIAMS (born CROSSBY)
Plaintiff
and
GARRY
SHAUN McWILLIAMS
Respondent/First
Defendant
GARRY
SHAUN McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the COLLETT GARRY TRUST
(Registration
No. TM760)
Second
Defendant
DARYL
BRUCE McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the COLLETT GARRY TRUST
(Registration
No. TM760)
Third
Defendant
MARK
ADRIAAN BAKKER N.O. in his capacity as Trustee
for
the time being of the COLLETT GARRY TRUST
(Registration
No. TM760)
Fourth
Defendant
GARRY
SHAUN McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the G S McWILLIAMS TRUST
(Registration
No.
TM5955)
Fifth
Defendant
DARYL
BRUCE McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the G S McWILLIAMS TRUST
(Registration
No. TM5955)
Sixth
Defendant
MARK
ADRIAAN BAKKER N.O. in his capacity as Trustee
for
the time being of the G S McWILLIAMS TRUST
(Registration
No. TM5955)
Seventh
Defendant
GARRY
SHAUN McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the GARRY McWILLIAMS FAMILY TRUST
(Registration
No.
IT1711/98)
Eight
Defendant
DAVID
HONEYBALL N.O. in his capacity as Trustee
for
the time being of the GARRY McWILLIAMS FAMILY TRUST
(Registration
No.
IT1711/98)
Ninth
Defendant
GAVIN
CHARLTON HARVEY N.O. in his capacity as Trustee
for
the time being of the GARRY McWILLIAMS FAMILY TRUST
(Registration
No. IT1711/98)
Tenth
Defendant
GARRY
SHAUN McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the MID TRUST
(Registration
No. IT541/95)
Eleventh
Defendant
CRAIG
CULLINGWORTH N.O. in his capacity as Trustee
for
the time being of the MID TRUST
(Registration
No.
IT541/95)
Twelfth
Defendant
MARK
ADRIAAN BAKKER N.O. in his capacity as Trustee
for
the time being of the MID TRUST
(Registration
No.
IT541/95
Thirteenth
Defendant
GARRY
SHAUN McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the BMI TRUST
(Registration
No. TM4482)
Fourteenth
Defendant
DARYL
BRUCE McWILLIAMS N.O. in his capacity as Trustee
for
the time being of the BMI TRUST
(Registration
No. TM4482)
Fifteenth
Defendant
MARK
ADRIAAN BAKKER N.O. in his capacity as Trustee
for
the time being of the BMI TRUST
(Registration
No. TM4482)
Sixteenth
Defendant
THE
MASTER OF THE HIGH COURT OF SOUTH AFRICA –
EASTERN
CAPE
DIVISION
Seventeenth
Defendant
NEDGROUP
TRUST LTD
(In
its capacity as trustee for the time being of the
CHRISTIM
TRUST)
Eighteenth
Defendant
MOHAMED
SALEEM KHAN N.O.
In
his capacity as Trustee for the time being of the
HIGHWAY
TRUST (Registration No. IT000040/2019)
Nineteenth
Defendant
STANLEY
WEINSTEIN N.O.
In
his capacity as Trustee for the time being of the
HIGHWAY
TRUST (Registration No. IT000040/2019
Twentieth
Defendant
ROSEBANK
LTD
(In
its capacity as trustee for the time being of the
HIGHWAY
TRUST, a Trust established under the laws
of
the British Virgin
Islands)
Twenty-First
Defendant
___________________________________________________________________
REASONS FOR JUDGMENT
___________________________________________________________________
MAKAULA
J:
A.
Introduction
:
[1]
This is an application for a postponement. The trial is
scheduled to resume
on 5 August 2020 until the end of term. The
plaintiff (applicant herein) launched the application on my directive
on 15 July
2020. That was after an exchange of correspondence
wherein the proposal for the postponement was mooted. It became
clear from the correspondence that the first defendant (first
respondent herein) and the second to twenty first defendants (second
to twenty first respondents herein) opposed the postponement.
Realising that, I issued a directive that a substantive application
be brought hence this application.
[2]
The trial started before me on 5 August 2019. The opening
address of the plaintiff
endured until 7 August 2019. The
opening address by the defendants started on 7 August 2019 to 8
August 2019. In effect
the opening addresses spanned over a
period of three days. On 13 August 2019 the plaintiff started
with her first witness
Mr Allan Greyling who is a charted accountant
and qualified as an expert in his field. He submitted two
expert reports.
His first report is sixty five pages and his
second report constitutes fifty three pages. The annexures to
his reports start
from page 123 to 309.
[3]
His evidence referred to his reports, annexures and further
cross-referenced to numerous
other trial files which form part of the
discovered documents. The discovered documents constitutes
eighty six lever arch
files. His evidence in chief,
cross-examination and re-examination ended on 22 August 2019 (i.e. it
took eight days).
His evidence was contained in four lever arch
files. The plaintiff avers that there are eight more lever arch
files which
have been filed since the matter was postponed.
That is as a result of the applications to compel compliance with
subpoenas
served on Mr David Honeyball, Mr Stephen Burges and the
South African Reserve Bank.
B.
Reasons for the Postponement
:
[4]
I should mention upfront that the parties are
ad idem
that the
matter cannot proceed in an open court due to the COVID-19 pandemic.
The plaintiff’s main reasons for the postponement
are as
follows:
(i)
The alternative of a virtual hearing is not feasible or desirable.
(ii)
That the Rule 43(6) application that the plaintiff brought has yet to
be determined
by this court and thus she has no funds to brief
counsel and experts for the resumed hearing.
[5]
In substantiation, the plaintiff gave a detailed explanation why she
did not believe
that the trial may continue virtually. I shall
not deal with all that which is raised by the plaintiff in this
regard.
Neither would I deal extensively with the reasons
advanced by the defendants why they wish the matter to proceed
virtually.
[6]
The plaintiff states that she intends to call the following expert
witnesses who are
advanced in age and live in different cities:
6.1
Hilton Greenbaum, a chartered accountant and a forensic accounting
expert who is currently
aged 69, who resides in Cape Town;
6.2
Charles van Staden, an exchange control expert who is currently aged
69, and resides in
Johannesburg.
6.3
Laurika Buckley, a handwriting expert and who resides in
Johannesburg.
6.4
Willem Boshoff, an actuary and who resides in Cape Town.
[7]
Plaintiff avers that her lead counsel, who is 78 years old, and the
above expert witnesses
mentioned in preceding paragraph fall into a
high risk category in circumstances of their being exposed to the
COVID-19 virus.
[8]
The plaintiff alleges that the logistics of having trial files
available to all these
witnesses at various venues and the costs of
doing so are prohibitive. Furthermore, the logistics of
ensuring that the court’s,
the parties’ and the trial
bundles in various venues are updated will be a mammoth task
resulting in delays as the documents
would be made available to the
various venues, so submits the plaintiff. She further makes the
point that during the trial
in August 2019, expert witnesses had to
be consulted regarding the documentation determined during the trial,
after hours or during
the day when the matter was postponed because
of the late delivery of the documents. She contends that it
would be very difficult
in circumstances where the experts are not
present for consultation and would result in intermittent
postponements. Furthermore,
she state that there is a plethora
of documentation which would have to be referred to during the
proceedings.
[9]
In her quest for the postponement, the plaintiff raises many other
issues, like the
conduct of the defendants from the inception of
these proceedings, her health condition which prohibits her to travel
regularly
to Cape Town to consult, prospects of success and prejudice
to her.
[10]
The first defendant, on the other hand, argues that he will be
prejudiced by the postponement
of the trial highlighting his health,
his intention to marry, his estranged relationship with his children
who at the moment residing
with the plaintiff and finances. I
shall not delve in that respect. He further deals with the
background to the litigation
between the parties and the never ending
discovery and related applications he and the trust defendants are
subjected to by the
plaintiff.
[11]
The first defendant and the trust defendants are of the view that a
virtual hearing is going
to be cost effective and workable in the
prevailing circumstances. In summary the defendants aver that a
virtual hearing
has become a new norm, nothing is exceptional about
this trial.
[12]
Mr Whelan deposed to the answering affidavit on behalf of the trust
defendants. In his
affidavit, he sets out, in summary, that the
plaintiff in her application in terms of Rule 43(6) did not indicate
that she intended
to have the matter postponed on 05 August 2020
despite that she filed two further affidavits in June 2020 in the
middle of the
lockdown. The defendants intimate that the
intention of the plaintiff in so doing was to mislead the court in
the hope that
the plaintiff would be ordered to pay R7.5 million
sought for her past legal fees and/or disbursements. The trust
defendants
postulate that the application is fatally defective in
that the plaintiff does not address the prejudice the defendants were
likely
to suffer if the matter is postponed.
[13]
The trust defendants contend that the impossibility to hold a virtual
hearing alleged by the
plaintiff is a gross exaggeration because
documents referred to in the opening address by the plaintiff’s
counsel must make
up the core documents which she wishes to deploy in
support of her case. They submit that those documents will, on
a liberal
estimate, probably not exceed five lever arch files.
It is disingenuous for the plaintiff to assert that the reports of
expert
witnesses are a mere summary because each report filed is very
detailed, discussing as they do minute details through large volumes
of documents and copying the same as annexures, so submit the trust
defendants.
[14]
The trust defendants dispute that the health of the plaintiff would
preclude her from travelling
to Cape Town. They further dispute
that load shedding would disrupt a virtual hearing of the matter.
The trust defendants
offer R50 000.00 per day towards the hiring
of a venue where virtual hearing may be held.
C.
Analysis
:
[15]
Rule 41 of the Uniform Rules of Court deals with applications for
postponement of matters.
The principles applicable to
postponements have become trite law. The parties have in their
heads of argument touched on
those principles and I need not burden
the judgment by rehashing them. What remains is for me to
decide, based on the circumstances
of this matter, whether it is in
the interests of justice to accede to the postponement. In so
doing, I shall have regard
to what Mokgoro J said in
National
Police Service Union v Minister of Safety and Security
[1]
that:
“
.
. . The postponement of a matter set down for hearing on a particular
date cannot be claimed as of right.
[2]
An applicant for a postponement seeks an indulgence from the Court.
Such postponement will not be granted unless this
Court is
satisfied that it is in the interests of justice to do so. In
this respect the applicant must show that there is
good cause for the
postponement. In order to satisfy the Court that good cause
does exist, it will be necessary to furnish
a full and satisfactory
explanation of the circumstances that give rise to the application.
Whether a postponement will be
granted is therefore in the discretion
of the Court and cannot be secured by mere agreement between the
parties. In exercising
that discretion, this Court will take
into account a number of factors, including (but not limited to):
whether the application
has been timeously made, whether the
explanation given by the applicant for postponement is full and
satisfactory,
[3]
whether there
is prejudice to any of the parties and whether the application is
opposed. All these factors will be weighed
by the Court to
determine whether it is in the interests of justice to grant the
postponement”. (Footnotes omitted)
[16]
I have had the benefit of proceeding with this matter as reflected as
above. During the
testimony of Mr Greyling, counsel from both
sided kept referring him to documents which were contained in all the
eighty six files
at the time. When Mr Greyling was testifying,
his evidence did not only hinge on the documents referred to in the
opening
address of the plaintiff nor to his reports and annexures.
His evidence in cross-referenced many of the trial bunles.
I
had all those files surrounding me on the bench as I was proceeding
with the matter. I had to sit with a court official
next to me
throughout the proceedings because was unable to identify the
documents which were referred to. Counsel themselves
had to
have people assisting with the identification of files and
documents. Based on the manner in which the documents were
vastly referred to when Mr Greyling testified, I do not agree with
the contention by the trust defendants that experts would be
allowed
to collate their files and produce limited file bundles. That
is not feasible based on how the trial was conducted.
It would
not be possible for me to have a person assisting me with files in
the virtual hearing due to the COVID-19 pandemic protocols.
[17]
Counsel, Mr Greyling and myself required continual assistance in the
management of the trial
files. During the proceedings documents
were constantly filed in various trial bundles as they were made
available by the
parties. I further agree with the submission
made by the plaintiff that supplementation of trial bundles may be
necessary
in the midst of the testimony of witnesses. Mr
Greyling during the trial was requested to provide certain documents
which
he relied on when he compiled his reports. Such
documentation led to the updating of trial files.
[18]
The plaintiff makes the point that at the trial in August 2019,
expert witnesses had to be consulted
regarding the documentation
delivered during the trial, after hours or during the days when the
matter was postponed because of
the late delivery of documents.
The plaintiff states, based on that experience, that it will be very
difficult in circumstances
where experts are not present for
consultation and that may result in lengthier intermittent
postponements. These concerns
have not been denied by the trust
defendants. I further agree with the submission that it would
not be easy for the court,
legal representatives and witnesses if
original documents were to be required for access and inspection.
[19]
Having had regard to the above factors, I am of the view that a
virtual hearing of the matter
would not be convenient to the court
[4]
and in the interest of justice, hence the order I made.
_____________________
M
MAKAULA
Judge
of the High Court
Appearances:
Counsel
for the Plaintiff:
Adv P Hodes (SC)
Adv
T Dicker (SC)
Instructed
by:
Catto Neethling Wiid Inc
Cape
Town
c/o
Greyvensteins Attorneys
Port
Elizabeth
For
the Respondent/First Defendant:
Mr
Garry McWilliams
(In
person)
Port
Elizabeth
Counsel
for Second to Sixteenth Trust Defendant’s:
and
Eighteen to Twenty-First Trust Defendant’s:
Adv
L Kuschke (SC) and
Adv
J Bernstein
Cape
Town
Instructed
by:
Bowman Gilfillan
Cape
Town
c/o
Pagdens
Port
Elizabeth
Date
of Hearing: 29 July
2020
Order
Delivered: 29 July
2020
Reasons
Available: 03 August
2020
[1]
2000 (4) SA 1110
(CC) at page 1112 para 4.
[4]
Murphy v SA
Railways & Hardware and Another
(III)
1946 NPD 642
at 643;
McCarthy
Retail Ltd v Short Distance Carries CC,
2001
(3) SA 482
(SCA) at para 32.