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[2021] ZAGPPHC 209
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R.D.V v I.J.D.V (81157/2017) [2021] ZAGPPHC 209 (24 March 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 81157/2017
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE:
24 MARCH 2021
In
the matter between:
R
D
V[…]
Plaintiff
And
I
J D
V[…]
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
This
judgment pertains to the wasted costs of a four-day trial, that was
occasioned by the insistence of the plaintiff, R d V[…]
(hereinafter referred to as the plaintiff) to have the matter heard
in open court.
Introduction
[2]
As at
the 12
th
day of
March 2021 and according to the statistics released by the Department
of Health, 51 110 South African citizens have tragically
succumbed to
the COVID 19 virus (“the virus”) and according to the New
York times, 2, 6 million people globally have
died as a result of the
virus.
[3]
The
virus which originated in China during or about December 2019 has
caused indescribable devastation worldwide and as appears
from the
numbers quoted above South Africa has not been spared.
[4]
The
virus has had an impact on all spheres of life including the
judiciary. In order to ensure the effective and safe running of
the
courts, the Judge President of this division, the Honourable Justice
Mlambo issued a number of directives.
[5]
One of
the methods to contain the spread of the virus is conducting court
proceedings on a virtual platform. This method has the
obvious
benefit of limiting the chances of exposing oneself (that is, all
persons whose appearance/presence is pertinent to said
court
proceedings, be it Judges, court staff, legal fraternity, witnesses,
interested parties, media, etc.) unnecessarily to contracting
the
virus.
[6]
I
pause to mention that this system is utilised by countries worldwide
in an attempt to curtail the spread of the virus.
Facts
[7]
This
is a divorce action between the plaintiff, R d V[…] and the
defendant, Mr I J d V[…] that was set down for a
period of
four days, from 9 March 2021 to 12 March 2021.
[8]
On
Monday, 8 March 2021, the Acting Deputy Judge President, the
Honourable Madam Justice Malopa-Sethosa allocated the hearing of
the
trial to this court.
[9]
I had
due regard to the nature of the dispute, the number of witnesses that
will testify and whether the matter was of public interest.
Taking
into account that the dispute being a divorce action is private of
nature; that only one issue was in dispute, to wit whether
the
defendant loaned money to the plaintiff and that only the plaintiff
and defendant will in all probability testify, I issued
a directive
that the matter will proceed on a virtual platform.
[10]
The
aforesaid method has been utilised by this court since the inception
of the pandemic, without any problems. This method of hearing
ensures
that issues in dispute are properly and safety ventilated.
[11]
The
method is tried and tested. In a recent trial between
Baker
& McKenzie Amsterdam N.V v GenCorp Investments (Pty) Ltd
(Case
Number: 88431/2016), I realised that save for the obvious health
benefits the mode of hearing offers, the opportunity to closely
observe the demeanour of a witness was and is excellent.
[12]
A
witness is on a screen right in front of the judge and much closer
than is possible in “open” court. Each blink of
an eye, a
twitch of the mouth, whether the witness is looking sideways, down or
directly into the camera is closely observed.
[13]
A
further benefit is that the recording also includes visuals, which
greatly assists afterwards if a Judge wants to make sure that
an
observation of the demeanour of the witness was correctly noted.
[14]
In
view of the aforesaid, I had no hesitation to direct that the trial
be conducted virtually. The hostility that is sometimes part
and
parcel of a divorce trial could also be circumvented by not exposing
the parties to each other.
[15]
If I
had any doubt that it would not be in the interest of justice that
the matter proceed virtually, I would obviously not have
issued the
directive.
[16]
In
compliance with the directive issued by this court a virtual court
hearing was set up for Tuesday the 9
th
of
March 2021.
[17]
At the
inception of the trial, Mr Snyman SC, informed me that,
notwithstanding this court’s directive, the parties have agreed
to a trial in “open” court and the matter should proceed
in “open” court.
[18]
Ms Van
Niekerk, counsel for the defendant, informed me that although the
parties had agreed prior to my directive that the matter
should be
heard in “open” court, the defendant has duly considered
my directive and will comply therewith. The defendant
was ready to
proceed to trial.
[19]
If one
has regard to the issue in dispute between the parties and the length
of time it took the matter to come to trial, the defendant’s
decision to abide by this court’s directive, was sensible.
[20]
The
plaintiff instituted the divorce proceedings in November 2017, some
four years ago, only claiming a decree of divorce and costs.
[21]
The
defendant filed a counterclaim for the repayment of an alleged loan
granted to the plaintiff in the amount of R 2 100 000,
00.
The claim is defended by the plaintiff and one would have thought it
would be in the best interests of both parties to proceed
with the
trial.
[22]
Costs
had already been incurred in the preparation for the matter and as
indicated
supra
the
matter was set down for four days.
[23]
Upon
becoming aware of the defendant’s decision to abide by the
directive of this court, Mr Snyman informed me that the plaintiff
insists that the matter be heard in “open” court.
[24]
In
order to understand and consider the plaintiff’s decision, I
requested Mr Snyman to provide an explanation for the plaintiff’s
decision not to abide by the court’s directive.
[25]
Mr
Snyman simply informed me that it was the plaintiff’s
constitutional right to be heard in “open” court and
that
she insists on enforcing this right. Further probing to establish the
real reason for the plaintiff’s insistence that
matter proceed
in open court did unfortunately not yield any results.
[26]
In
order to curtail the exposure to the virus and still have a physical
hearing, Ms van Niekerk proposed that the hearing proceeds
in the
defendant’s attorney’s conference room. This suggestion
did not find favour with the plaintiff.
[27]
I was,
understandably, perturbed by the plaintiff’s attitude. Mr
Snyman is an eminent, highly regarded senior counsel at the
Pretoria
Society of Advocates. He would no doubt have explained to the
plaintiff that other constitutional rights must also be
taken into
account in view of the pandemic. The right to life and an environment
that is safe comes to mind. One should also bear
in mind that since
the advent of the pandemic it was necessary to curtail several
constitutional rights, for instance the
right to freedom of movement,
the right to engage in economic activity, to name a few.
[28]
One
would furthermore have expected that a fair hearing of the dispute
between the parties would have been the paramount consideration
to be
taken into account.
[29]
Whilst
the plaintiff is not concerned with the risks involved in appearing
in “open” court, her decision exposes her
own legal team,
the defendant and his legal team, myself, my secretary and other
court personnel who will have to be in court,
to the risk of
contracting the virus. In weighing up the different competing
interests, the plaintiff’s stance can only be
described as
selfish.
[30]
In
view of the plaintiff’s steadfast insistence to be heard in
“open” court, I referred the matter back to the
Honourable Acting Deputy Justice President for reallocation. I,
however, informed the parties that, whatever transpired during
their
meeting with the Acting Deputy Judge President, I am still available
to attend to the trial.
[31]
It
appears that another court was not available to hear the matter and
that the matter had to be removed from the roll. On 11 March
2021,
the parties were referred back to this court for an argument on the
costs wasted as a result of the removal of the matter
from the roll.
Submissions
[32]
Mr
Snyman, with reference to
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of
Expression Institute as amicus Curiae) In re:
Masetlha v President of
South Africa and Another
2008
(5) SA 31
(CC), firstly reiterated that the plaintiff has a
constitutional right to have the matter heard in “open”
court.
[33]
Secondly,
Mr Snyman submitted that the parties had agreed to a hearing in
“open” court and that the defendant may not
at this stage
renege on the agreement.
[34]
Ms van
Niekerk made the following submissions with regard to the directives
in the Consolidated Practices Directives issued by Judge
President
Mlambo in September 2020 titled “
JUDGE
PRESIDENT’S CONSOLIDATED DIRECTIVE (18 SEPTEMBER 2020
CONSOLIDATED DIRECTIVE) IN RE: COURT OPERATIONS IN THE PRETORIA
AND
JOHANNESBURG HIGH COURTS DURING THE EXTENDED COVID-19 NATIONAL STATE
OF DISASTER
”
:
[34.1] “
4.4
Subject to the stipulations set out below; matters that require oral
evidence to be adduced may be conducted
in open Court.
4.4.1 The
parties must canvas their preferred mode of hearing in their practice
note for the roll call sent to the DJP
or ADJP.”
Ms Van Niekerk stated
that the parties did indicate that their preferred mode of hearing
would be “open” court.
[34.2]
“
4.4.2
If all Parties are in agreement on a preference for an open Court
hearing, the Judge allocated to hear the matter shall,
having
considered the Parties’ canvassed views, nevertheless retain
the discretion to pronounce on the mode of hearing.”
Ms Van Niekerk referred
to this court’s directive that the mode of hearing will be
virtual court.
[34.3]
“
4.4.3
Where the Judge holds the view that an open court hearing poses a
risk of infection the Judge
shall
determine
an appropriate alternative mode of hearing, which may include
receiving evidence on affidavit or the utilisation of video
conferencing.”
(own
emphasis)
Ms Van Niekerk, once
again, made reference to this court’s decision in terms of the
Directive.
[34.4]
“
4.4.4
The Judge may, despite agreement or the absence thereof between the
parties on an open Court hearing, on
good
cause shown
that
a virtual hearing will be inadequate to achieve a fair trial, order a
wholly or partially open Court hearing, or, having regard
to the
provisions of paragraph 4.4.3
…
.”
(own
emphasis)
Ms Van Niekerk pointed
out that the defendant has abided by this Court’s directive and
it was for the plaintiff to show good
cause why a virtual hearing
will be inadequate and will not achieve a fair trial. This, Ms Van
Niekerk submits, the plaintiff has
failed to do.
[35]
Further
to paragraph 4.4.4 of the Consolidated Directive:
“
4.4.4
… and where the considerations of the interests of
justice are
concerned, postpone the hearing until such time than an open Court
hearing may become appropriate. If a matter is postponed
for this
reason the wasted costs, if any, shall be reserved for the ultimate
trial Court to decide.”
Ms Van Niekerk submitted
that the court has not made a finding in accordance with this
paragraph and that the defendant was, in
accordance with the court’s
directive, entitled to have the matter disposed of by the mode of a
virtual hearing. The interests
of justice will, according to Ms Van
Niekerk, be served by finalising the trial which has been pending for
four years and in respect
of which huge costs have been incurred by
both parties.
[36]
In
reply and when the court questioned the plaintiff’s
unreasonable attitude in insisting on her right to be heard in “open”
court in the face of the deadly Covid 19 pandemic, Mr Snyman, to his
credit, agreed that in the face of the pandemic, other factors
and
rights might also be taken into account and weighed up in considering
the plaintiff’s right to be heard in “open”
Court.
Discussion
[37]
In
view of the directives contained in the Consolidated Directive of 18
September 2020, the plaintiff’s stance that the parties
had
agreed to be heard in “open” court and the agreement must
be adhered to, cannot be correct.
[38]
To the
contrary, it is in the discretion of the Judge to whom the matter is
allocated to decide which mode of hearing will in the
circumstances
be the most appropriate.
[39]
It was
open to the plaintiff to show good cause why the mode of hearing
directed by the court would not result in a fair hearing
and would
not be in the interests of justice. This the plaintiff has dismally
failed to do.
[40]
The
plaintiff chose not to take this court into her confidence and
explain the reasons for her decision to reject the court’s
directive.
[41]
In the
result, I cannot find
just
cause
for
the plaintiff’s failure to abide by the directive of this
court. The plaintiff’s conduct is not only inexplicable,
but
also grossly unfair towards the defendant who wishes at all costs to
finalise the matter.
[42]
Insofar
as the court and court officials are concerned, I view the
plaintiff’s stance as unreasonable and selfish. The risk
of
contracting the virus when one has to attend “open” court
is self-evident. One is unnecessarily and constantly exposed
to the
risk of contracting the virus from the moment of leaving one’s
motor vehicle. An “open” court proceeding
entails a
constant walking back and forth between chambers, utilising the lifts
and passages and presiding in a court with the
obvious risk of being
exposed to the virus. The number of people in the court building
including staff, cleaners, security, legal
representatives and the
general public increases the risk of exposure.
[43]
Four
court days have been wasted due to the plaintiff’s conduct. Ms
Van Niekerk submitted that the plaintiff should pay the
costs wasted
as a result of her unreasonable stance. I agree.
[44]
In
considering an appropriate order, I take into account that the Acting
Deputy Judge President directed on 10 March 2021 that the
matter be
removed from the roll and that the parties apply for a new trial
date. It is unfortunate that the directive was not,
due to a
technical glitch, communicated to the defendant’s legal
representatives on 10 March 2021. It appears the decision
of the
Acting Deputy Judge President only reached the defendant’s
legal representatives on Thursday 11 March 2021.
[45]
Ms Van
Niekerk indicated that until the directive came to the knowledge of
the defendant, the defendant and his legal team, kept
themselves
available to proceed to trial, should such a direction have been
issued by the Acting Deputy Judge President.
[46]
I am
of the view that the plaintiff is not to be blamed for the technical
glitch and although the matter was set down for four days,
only two
court days, to wit the 9
th
and
10
th
of
March 2021 (the date on which the Acting Deputy Judge President’s
formal notification was transmitted to the parties),
were wasted as a
result of her conduct. The order will in the result be limited to the
wasted costs of two days.
ORDER
[47]
In the
premises, I issue the following order:
The
plaintiff is ordered to pay the wasted costs of the 9
th
and
10
th
of
March 2021
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
11
March 2021
(Virtual
hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
24
March 2021
APPEARANCES
Counsel
for the Plaintiff:
Advocate
M. Snyman SC
Instructed
by:
Ronel
De Villiers Inc.
Counsel
for the Defendant:
Advocate
N. van Niekerk
Instructed
by:
Arthur
Channon Attorneys