About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2023
>>
[2023] ZAECELLC 1
|
|
Rabie v Cotterell N.O and Others (813/2017) [2023] ZAECELLC 1 (31 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case
No: 813/2017
In
the matter between:
PANTELLIS
YIANNIS RABIE
PLAINTIFF
and
ANTONY
CHARLES PATRICK
FIRST
DEFENDANT
COTTERELL
N.O.
ANITA
BHIKA N.O.
SECOND
DEFENDANT
BRIDGET
MARY NAUDE N.O.
THIRD DEFENDANT
JUDGMENT
Matotie
AJ
Introduction
[1]
On 18 January 2023 the defendant applied for a postponement of the
hearing of this
civil action which was vigorously opposed by the
plaintiff. After hearing both parties, I then issued an order
postponing the matter
sine die
and placed the parties on terms
regulating the future conduct thereof. I stated that reasons would
follow in due course.
[2]
These are the reasons.
Background
[3]
The Plaintiff commenced action in 2017, suing the Defendants for
recovery of R405 000
plus interest as a result of the
plaintiff’s alleged short payment of R15 000 from the agreed
amount, in breach of contract.
[4]
The defendants filed their plea and simultaneously instituted two
counterclaims for
damages arising from the Plaintiff’s alleged
breach contract and dishonest, alternately fraudulent conduct.
[5]
The matter was certified trial ready by the case flow management
judge on 22 July
2022. It would appear that the defendant
applied for the matter to be allocated a date beyond 1 January 2023
owing to a possible
amendment which was also communicated to the
plaintiff’s attorneys on 13 July 2022 at a pre-trial
conference.
[6]
On 17 August 2022 and almost a month later the defendants consulted
with their legal
representatives about the possible amendment. In
that consultation the merits and demerits of the counterclaims were
discussed.
[7]
It would appear that nothing developed on the defendants’ front
for a couple
of months in pursuit of the amendment. The matter was
eventually set down for trial on 19 October 2022 at the instance of
the Plaintiff
[8]
A month after the matter had been set down for trial, those
representing the defendants
communicated that they had received
instructions to amend their plea, however, they were yet to consult
and confirm the correctness
of their instruction.
[9]
The matter was certified trial ready on 25 November 2023. On 19
December 2023, the
defendants’ attorneys advised the
Plaintiff’s attorneys that the amendment should be served via
email, to which Plaintiff’s
attorneys retorted that the
amendment should be filed with the correspondent attorneys as he
would not have access to his emails
until 4 January 2023.
[10]
At this point it became apparent that the postponement of this matter
was highly likely and the
defendants were charged with the
responsibility to seek consent to that postponement at that point. It
appears that the defendants
assumed that there was a meeting of the
minds insofar as the future conduct of the matter, in particular that
the matter would
be postponed on 18 January 2023.
[11]
On 4 January 2023 the defendants’ notice of intention to amend
was served together with
a notice of withdrawal for the counterclaim
mounted by the Defendants.
[12]
On 6 January 2023 the plaintiff confirmed that he was bracing himself
for trial and sought confirmation
that he should not bother preparing
for the counterclaims.
[13]
On 10 January 2023 the defendants formally sought a postponement and
the plaintiff did not accede
thereto and sought that the defendant
immediately make discoveries to avoid the possible postponement. It
would appear that, depending
on the discovered documents, consent
could have been granted after a proper assessment thereof.
[14]
An application for postponement was served and filed on 16 January
2023, two days’ shy
of the trial date.
Legal
framework
[15]
Erasmus,
[1]
says the following
about postponements:
‘
The
legal principles applicable to an application for the grant of a
postponement by the court are as follows:
(a)
The court has a discretion as to whether an
application for a postponement should be granted or refused. Thus,
the court has a discretion
to refuse a postponement even when wasted
costs are tendered or even when the parties have agreed to postpone
the matter.
(b)
That discretion must be exercised in a
judicial manner. It should not be exercised capriciously or upon any
wrong principle, but
for substantial reasons. If it appears that a
court has not exercised its discretion judicially, or that it has
been influenced
by wrong principles or a misdirection on the facts,
or that it has reached a decision which could not reasonably have
been made
by a court properly directing itself to all the relevant
facts and principles, its decision granting or refusing a
postponement
may be set aside on appeal.
(c)
An applicant for a postponement seeks an
indulgence. The applicant must show good and strong reasons, i.e. the
applicant must furnish
a full and satisfactory explanation of the
circumstances that give rise to the application. A court should be
slow to refuse a
postponement where the true reason for a party’s
non-preparedness has been fully explained, where his unreadiness to
proceed
is not due to delaying tactics, and where justice demands
that he should have further time for the purpose of presenting his
case.
(d)
An application for a postponement must be
made timeously, as soon as the circumstances which might justify such
an application become
known to the applicant. If, however,
fundamental fairness and justice justify a postponement, the court
may in an appropriate case
allow such an application for postponement
even if the application was not so timeously made.
(e)
An application for postponement must always
be bona fide and not used simply as a tactical maneuver for the
purpose of obtaining
an advantage to which the applicant is not
legitimately entitled.
(f)
Considerations of prejudice will ordinarily
constitute the dominant component of the total structure in terms of
which the discretion
of the court will be exercised; the court has to
consider whether any prejudice caused by a postponement can fairly be
compensated
by an appropriate order of costs or any other ancillary
mechanism.
(g)
The balance of convenience or inconvenience
to both parties should be considered: the court should weigh the
prejudice which will
be caused to the respondent in such an
application if the postponement is granted against the prejudice
which will be caused to
the applicant if it is not.’ (Footnotes
omitted.)
[16]
A postponement is an indulgence
sought
by one party to a suit and it must be made timeously, that is, as
soon as the circumstances which give rise to the application
are
known to the party seeking it. It has been held that postponement is
not merely for the taking.
[2]
[17]
Factors that need to be taken into account in an application for a
postponement are set out by
the Constitutional Court in
National
Police Service Union and Others v Minister of Safety and Security and
Others
[3]
where Makgoro J said:
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. 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, whether there is prejudice to any of the parties
and whether the application
is opposed.’
[18]
In
Psychological
Society of South Africa v Qwelane and Others
[4]
the
Constitutional Court held:
‘
In
exercising its discretion, a court will consider whether the
application has been timeously made, whether the explanation for
the
postponement is full and satisfactory, whether there is prejudice to
any of the parties and whether the application is opposed.
All these
factors will be weighed to determine whether it is in the
interests of justice to grant the postponement. And, importantly,
this Court has added to the mix. It has said that what is in the
interests of justice is determined not only by what is in the
interests of the immediate parties, but also by what is in the
broader public interest.’
[19]
It is trite that the party seeking postponement must proffer good and
strong reasons therefor,
and that the applicant must give full and
satisfactory explanation of the circumstances that give rise to the
application.
[5]
The application
itself must be
bona
fide
and
must not be used as a tactical endeavour to obtain an advantage to
which the applicant is not entitled.
[20]
The defendants have advanced one reason for seeking the postponement,
namely, their intention
to amend their plea, having filed a notice of
intention to do so as at the time of the hearing of this matter. As a
consequence
to the intended plea, it would appear that further
discoveries would be necessary for purposes of trial. For that reason
the trial
would have to, in the interest of justice, be postponed.
[21]
It
is apposite at this stage to consider the purpose of Uniform rule 28.
In this regard,
All
Alloys (Pty) Ltd v Du Preez
[6]
is instructive. The court iterated what is now commonplace, that
Uniform rule 28 is intended to regulate the amendment of pleadings
and documents in respect of which the parties' procedural rights in
proceedings may be affected. The notification requirement in
Uniform
rule 28(1) grants the other party to the proceedings an opportunity
to object to the intended amendment under the provisions
of Uniform
rule 28(4). Objections customarily arise if a party may be prejudiced
in the conduct or outcome of the proceedings because
of the amendment
or its timing.
[22]
The principles governing the grant or refusal of an amendment have
been expounded in several
cases. The key principles evident in these
cases were also echoed by the Constitutional Court in
Affordable
Medicines Trust and Others v Minister of Health and Others
.
[7]
Referring, with approval, to
Moolman
v Estate Moolman and Another
,
[8]
the court, in paragraph 9, indicated that:
‘
the
practical rule that emerges . . . is that amendments will always be
allowed unless the amendment is mala fide (made in bad faith)
or
unless the amendment will cause an injustice to the other side which
cannot be cured by an appropriate order for costs, or “unless
the parties cannot be put back for the purposes of justice in the
same position as they were when the pleading which it is sought
to
amend was filed”.’
[23]
The essence of these principles were recently crystalized by the
Constitutional Court in
Ascendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and
Others
,
[9]
in paragraph 89, when it stated that Uniform rule 28 ‘is an
enabling rule and amendments should generally be allowed unless
there
is good cause for not allowing an amendment’.
[24]
The plaintiff confirmed that the amendment is not opposed and sought
that the defendants perfect
the amendment without further delay. The
plaintiff’s consent to the amendment has somewhat tilted the
pans of scale in
favour
of the defendants
insofar as the postponement sought.
[25]
The plaintiff proposed that issues be separated and that trial should
proceed. No proper application
for separation was mounted by the
plaintiff and, in any event, it was apparent that the separation
would not be convenient and
consequently not appropriate in the
circumstances.
[26]
In granting the postponement I had to make further considerations as
to the future conduct of
the matter and an appropriate order as to
costs.
[27]
The plaintiff has strenuously opposed postponement of this matter to
ensure that the matter proceed
on the scheduled date and that his
right to a speedy resolution of this dispute is protected. I cannot
agree more with the plaintiff
in this regard. The interests of
justice demand that this matter is finalised. In dealing with similar
circumstances in
McCarthy
Retail Ltd v Shortdistance Carriers CC
,
[10]
Schutz JA said that ‘a party opposing an application to
postpone an appeal has a procedural right that the appeal should
proceed on the appointed day. It is also in the public interest that
there should be an end to litigation. Accordingly in order
for an
applicant for a postponement to succeed, he must show a ‘good
and strong reason for the grant of such relief’.
There is no
reason why these remarks should not apply to the postponement of
trials.
[28]
In
Persadh
and Another v General Motors SA (Pty) Ltd
,
[11]
Plasket
J proposed that as that party seeks an indulgence he or she must show
good cause for the interference with his or her opponent's
procedural
right to proceed and with the general interest of justice in having
the matter finalised.
[29]
I place emphasis on a litigant’s right to have a matter wherein
he or she is a party finalized
speedily. It is of great concern that
the pre-trial procedures as between the parties in the form of a
pre-trial conference and
before a judge handling the case flow
management of the matter may be aborted with ease. These procedures
are designed to ensure
that only matters that are ready to run should
be enrolled. This is a helpful process that ensures that those
litigants who would
ordinarily have to wait longer to have their
matters heard can be heard sooner than later and finalized.
[30]
It further concerned me that the matter bears a 2017 case number and
I would have imagined that,
at the very least, parties would have
dealt with pleadings to finality. The reason advanced by the
defendants has always been at
the disposal of the defendant and when
I enquired from counsel for the defendant about the cause for the
delay in drawing this
amendment, counsel advised me that his
predecessor did not identify this defence. This is cold comfort to
the plaintiff and the
court in that the defence is for the defendant
and not its representatives. In any event, it is apparent that
counsel has been
engaged in this matter as far back as 18 October
2018 where he appeared and argued on behalf of the defendants an
application to
compel before Bloem J.
[31]
The conduct of the defendants is inexcusable for the following
reasons:
a)
the foundational information to effect the amendment has always
resided with the defendant;
b)
the defendants intimated for the first time that an amendment
would
be sought in July 2022, well over four years after the initial plea
was filed, and six months later no amendment had been
effected;
c)
it took the defendants, at best for the defendants, six days
to mount
the application for postponement; and
d)
the defendants were not in possession of all original documents
which
they needed for trial as at the time of mounting the application for
postponement.
[32]
In
Reid
N.O. v Royal Insurance Co
,
[12]
Roper
J had the following to say:
‘
In
the present case the application has been brought under a complete
misconception as to the function of particulars,
and
it also had the effect of unnecessarily delaying the further
prosecution of the action, and in the circumstances I feel that
the
plaintiff ought to have his costs as between attorney and client
.’
(Emphasis added.)
[
33
]
I do not see why the plaintiff should shoulder any portion of the
costs in circumstances of the present
matter.
[34]
To mitigate the inconvenience to the plaintiff and ensuring that
trial proceeds in this matter,
I directed that a date be allocated by
the registrar in the second term and directed the parties to approach
the Judge President
for case flow management of this matter.
Conclusion
[35]
It is for these constitute reasons that I granted the order I did on
18 January 2023, which,
for the sake of completeness, reads:
‘
1.
The trial is postponed
sine die
.
2.
The Registrar is directed to allocate a date in the second term for
trial.
3.
Parties are directed to approach the Judge President for case flow
management of this
matter
4.
The defendants, in their representative capacities, are directed to
pay costs occasioned
by the postponement on an attorney and client
scale, the one paying the other to be absolved.’
L.
MATOTIE
ACTING
JUDGE OF THE HIGH COURT
For
the plaintiff/respondent
Dr G Ebersohn
Instructed
by:
Ebersohn Attorneys,
c/o Bate Chubb &
Dickson Inc,
EAST LONDON
For
the defendants/applicants: Adv C Kotze,
Instructed
by:
Kirchmanns Inc,
EAST LONDON
Date
of hearing:
18 January 2023
Date
order issued:
19 January 2023
Date
of delivery of judgment: 31
January 2023
[1]
D E Van Loggerenberg
Superior
Court Practice
Vol
2 at D1-552A.
[2]
See
Isaacs
and Others v University of the Western Cape
1974
(2) SA 409
(C) at 411H; also
Grootboom
v National Prosecuting Authority
2014 (2) SA 68
(CC) at 76C-D.
[3]
See
National
Police Service Union and Others v Minister of Safety and Security
and Others
[2000] ZACC 15
;
2000 (4) SA 1110
;
2001 (8) BCLR 775
(CC) para 4
(‘
National
Police Service Union
’).
[4]
Psychological
Society of South Africa v Qwelane and Others
(CCT226/16)
[2016] ZACC 48
;
2017 (8) BCLR 1039
(CC) para 31.
[5]
See
National
Police Service Union
fn 2 at 1112C-F;
Shilubana
and Others v Nwamitwa (National Movement of Rural Women and
Commission for Gender Equality as Amicus Curiae)
[2007] ZACC 14
;
2007 (5) SA 620
(CC) at 624B-C;
[6]
All
Alloys (Pty) Ltd v Du Preez
2013
JDR 1648 (GSJ) para 15.
[7]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
.
[8]
Moolman
v Estate Moolman and Another
1927
CPD 27
at 29.
[9]
Ascendis
Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and
Others
[2019] ZACC 41
;
2020 (1) SA 327
(CC);
2020 (1) BCLR 1
(CC); 2019 BIP
34 (CC).
[10]
McCarthy
Retail Ltd v Shortdistance Carriers CC
[2001] ZASCA 14
;
[2001] 3 All SA 236
(A) para 28.
[11]
Persadh
and Another v General Motors SA (Pty) Ltd
2006 (1) SA 455
(SE) para 13.
[12]
Reid
N.O. v Royal Insurance Co
1951
(1) SA 713
(T) at 720C-D.