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[2021] ZAGPPHC 125
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Passenger Rail Agency of South Africa v S.A.T obo W.B.T (80511/2017) [2021] ZAGPPHC 125 (16 February 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
16-02- 2021
Case
Number.:
80511/2017
In
the matter between:
PASSENGER
RAILL AGENCY OF SOUTH AFRICA
Applicant
and
S[....]
A[....] T[....] obo W[....] B[....]
T[....]
Respondent
JUDGMENT
KUBUSHI
J
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
The issue for determination in this opposed application for
postponement is whether or not
the postponement should be granted on
the ground that the applicant is not prepared for trial.
[2]
The factual background leading to the application is common cause
between the parties. The
respondent issued summons on behalf of his
minor child W[....] B[....] T[....], for damages suffered by the said
minor child when
the driver of the train on which the minor child was
a passenger, drove off whilst the minor child was alighting from the
train.
As a result, the minor child fell from the train to the
ground and suffered injuries.
[3]
Summons was issued on 24 November 2017 and the matter was certified
trial ready on 21 June
2019. A trial date was obtained for 5
June 2019 but on the said date the applicant was not ready to proceed
with the trial
and the matter was postponed by agreement with the
applicant ordered to pay the wasted costs. The matter was again
certified trial
ready on 21 June 2019 and was set down for trial on
20 April 2020. Due to the COVID-19 pandemic and related directives
the matter
was automatically removed from the roll.
[4]
The matter was again placed on the roll for 25 June 2020 but the
applicant brought a similar
application for postponement on the day
of the trial. One of the reasons raised by the applicant for the
application for postponement
was the difficulty in finding the train
number that was allegedly involved in the incident. The court roll
was during that week
overcrowded and the matter was automatically
postponed to 15 February 2021. On Friday 12 February 2021, the
applicant filed an
application for postponement.
[5]
The parties held a pre-trial meeting once more on 10 February 2021 at
which no indication
was given that the applicant intends to apply for
a postponement.
[6]
The respondent filed his opposing papers on 15 February 2021 —
the day of the trial
and requested an indulgence to file his
answering affidavit. The answering affidavit was filed on 16 February
2021 together with
heads of argument, the applicant having filed its
heads of argument on 15 February 2021.
[7]
It is common cause that the applicant delivered its request for
further particulars on 27
May 2019 in which it requested the
respondent to furnish it with the particulars of the train in which
the respondent alleges the
minor child to have been a passenger. The
respondent delivered his reply to the request for further particulars
on 10 March 2020.
[8]
There is no dispute that the applicant is to blame for the delay in
requesting the number
of the train from the respondent, that is, in
respect of the period between the time when the summons was issued on
24 November
2017 and its request for further particulars which was
delivered on 27 May 2019. Which is a period of more than two years.
On the other hand, the respondent delayed in responding to the
applicant’s request for further particulars and is, therefore,
to blame for the period between the time he received the request for
further particulars on 27 May 2019 and the date he replied
to the
request for further particulars on 10 March 2020. Which is the period
of about eleven months.
[9]
The reason for the applicant's failure to obtain the particulars of
the train involved is
said to be because at the time when the
applicant received information to search for the particulars of the
train, the officials
of the applicant were on lock down.
[10]
The applicant has applied for a postponement of the hearing on the
basis that it is not ready to proceed
because it could not identify
the witnesses who are the train crew as it does not know the train in
respect of which the respondent
alleges the minor child to have been
a passenger. In essence, the principle bases for the application is
the fact that the applicant
needs to find the train number and,
therefore, the train, allegedly involved in the incident.
[11]
The respondent opposes the application for postponement for, amongst
others, the following reasons:
11.1.
The applicant knew
that it does not have the particulars of the train in which the
respondent alleges the minor child to have been
a passenger from the
time it received the summons and therefore the applicant should have
raised an exception or dealt with the
issue during the pleadings
stage.
11.2.
The applicant should
be able to obtain these particulars electronically.
[12]
I am inclined to allow the postponement on the ground that to a
certain extent, the respondent also
contributed to the applicant’s
unpreparedness for trial. It took the respondent about eleven months
to answer to the applicant’s
request for further particulars.
By the time the reply to the further particulars was received by the
applicant, the lockdown regulations
were in force. There was
therefore nothing that the applicant could have done within that
time.
[13]
However, due to the number of times the matter has been postponement
previously, and at sometimes at
the instance of the applicant, and
the fact that this matter must come to finality, the postponement I
am granting should be a
final postponement. The applicant must
endeavour to avail itself of the information it requires to proceed
with trial before the
next date of hearing, failing which this matter
will have to proceed without that information.
[14]
The applicant has offered to pay the wasted costs of the postponement
in the event the postponement
is granted. Such wasted costs, as
argued by the respondent, should include the two days reserved for
this matter as
per
the pre-trial meeting and the court roll.
This will, in a way, alleviate the prejudice to be suffered by the
respondent due to
the postponement.
[15]
I make the following order:
1.
The application for
postponement is granted.
2.
The applicant is
ordered to pay the wasted costs which costs shall include the two
days reserved for the hearing of this matter.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT,
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant’s
Representative
: Mr. B. Shabangu (Attorney)
Appellant’s
Attorneys
:
Maholobela Incorporated Attorneys
Respondent’s
Counsel
:
Adv. W.J Burger
Respondent’s
Attorneys
:
Ledwaba Mazwai Attorneys
Date
of hearing
: 15 February 2021
Date
of judgment
: 16 February 2021